Today in Supreme Court History: June 14, 1810

6/14/1810: Justice Ward Hunt's birthday.

Justice Ward Hunt

Comments

[Dan Schiavetta]

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (decided June 14, 1943): explicitly overrules Minersville v. Gobitis, 1940, and holds that refusal to salute flag and recite pledge as part of regular school day was protected by First and Fourteenth Amendments (Court holds that this was impermissible “compelled speech”; plaintiffs were Jehovah’s Witnesses; school had softened earlier versions of the pledge which other parents had said sounded “too much like Hitler’s”)

Taylor v. Mississippi, 319 U.S. 583 (decided June 14, 1943): companion case to Barnette, holding that speech urging that the flag not be saluted is protected by the First and Fourteenth Amendments

Elk Grove Unified School District v. Newdow, 542 U.S. 1 (decided June 14, 2004): atheist father did not have standing to challenge school requiring daughter to say “under God” in the Pledge of Allegiance as violating First Amendment (mother, who had legal custody, intervened to oppose and even a lot of liberals criticized the father for putting his daughter into the center of a publicized Constitutional as well as family dispute)

​National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (decided June 14, 1977): Here the Court criticizes the Illinois Supreme Court’s use of its “shadow docket” to in effect dispose of the merits. Suit was to enjoin American Nazis from marching in a community filled with Holocaust survivors. The state court lifted a lower court’s stay, i.e., the march would happen before a full appeal could be heard. The Supreme Court holds that the removal of the stay acted as an appealable final judgment, treats the motion to reinstate the stay as a full appeal, grants the motion, and sends the case back to state court to decide whether the Nazis’ First Amendment rights had been curtailed without procedural safeguards. (The state court then held that they had been, and allowed the march to go forward, 373 N.E.2d 21, which it did on June 25, 1978, and it was a dud, outnumbered by protesters.) (This incident resulted in a very good TV movie, with a cast of old Jewish actors familiar to my parents’ generation playing survivors, headed by Danny Kaye in his only dramatic role.)

Greer v. United States, 593 U.S. — (decided June 14, 2021): jury instruction that conviction for possession of firearm while a convicted felon required a showing that the defendant knew he had felony convictions not necessary in this case because with a multiple felony record defendant could be presumed to have known it

Minnesota Voters Alliance v. Mansky, 585 U.S. — (decided June 14, 2018): ban on entering a polling place while wearing a political message violated First Amendment (here, a “Don’t Tread on Me” shirt)

Animal Science Products v. Hebei Welcome Pharmaceutical Co., 585 U.S. — (decided June 14, 2018): federal court doesn’t have to follow foreign government’s construction of its own law as submitted in its official brief, though must give it weight (class action alleging price-fixing under Sherman Act against Chinese sellers of Vitamin C; Chinese government asserted that pricing regime was mandated by Chinese law) (verdict had been for plaintiff; on remand the Second Circuit dismissed anyway on international comity grounds, 8 F.4th 136)

Pennsylvania State Police v. Suders, 542 U.S. 129 (decided June 14, 2004): where plaintiff alleges “constructive discharge” (sexual harassment so intolerable she had to resign) defendant has burden to show that she failed to mitigate harm (e.g., by filing complaints, which it looks like this woman did, though to little effect)

Palmer v. Thompson, 403 U.S. 217 (decided June 14, 1971): no Equal Protection violation when city after being ordered to desegregate public swimming pools instead closed them (I used to live in a Southern town which did that, but it had only one pool and it was whites only; this city had a pool for blacks which got closed along with the whites-only pools) (wrinkle in this case is that city was the lessee on one of the white pools and the owner subsequently reopened it as whites-only); 5 – 4 decision

McDonald v. Pless, 238 U.S. 264 (decided June 14, 1915): denied motion to set aside verdict by applying the common law rule that a juror cannot testify as to misconduct in the jury room (here, an impermissible quotient verdict) (that’s not the rule in New York, at least not now, though one can’t formally question a juror post-verdict without a good reason)

West v. Gibson, 527 U.S. 212 (decided June 14, 1999): 1991 amendment to Title VII is read to allow the EEOC to award “appropriate” (language from original 1972 Act) compensatory damages instead of just back pay (“Words in statutes can enlarge or contract their scope as other changes, in law or in the world, require their application to new instances or make old applications anachronistic [citations]”)

[Rev. Arthur L. Kirkland]

A birthday over Barnette?

Are no reasonably competent law professors (or, as some describe themselves, "scholars") willing to improve Today In Supreme Court History?

Or, instead, are those responsible for this low-grade product unwilling to enable better writers to participate (perhaps because the current proprietors fear others might not flatter right-wing preferences)? In this case, conservatives' embrace of superstition could explain why Barnette is conspicuously avoided.

Georgetown deserves better, although it punched its own ticket to some degree with a poor hiring decision years ago.

[The Margrave of Azilia]

“Minnesota Voters Alliance v. Mansky, 585 U.S. — (decided June 14, 2018): ban on entering a polling place while wearing a political message violated First Amendment (here, a “Don’t Tread on Me” shirt)”

Wear a T-shirt saying “don’t vote for the crooks,” and let them figure out which side that’s opposing.

UPDATE: Oh, I see, it said no kind of political message at all. Not just "no partisan message."

[Frank Drackman]

Doesn't look a day over 213!

[apedad]

Re: Greer v. United States

Facts of the case

In 2007, Tracy A. Greer pleaded guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), along with numerous other charges not directly relevant to this case. In the plea agreement, the parties agreed that Greer was “punishable as an Armed Career Criminal” based on his five prior convictions for aggravated burglary under Ohio law. The district court agreed and sentenced Greer to 272 months’ imprisonment.

In 2015, the U.S. Supreme Court invalidated the “residual clause” of the Armed Career Criminal Act (ACCA), and in 2016 it made that invalidation retroactive on collateral review. Greer moved to vacate his sentence, but the district court denied his motion, holding that his convictions qualified under the ACCA’s enumerated-offenses clause, not the residual clause. The U.S. Court of Appeals for the Eleventh Circuit affirmed.

In 2019, the U.S. Supreme Court decided Rehaif v. United States, which held that when a person is charged with possessing a gun while prohibited from doing so under 18 U.S.C. § 922, the prosecution must prove both that the accused knew that they possessed a gun and that they knew they held the relevant status. The Court granted Greer’s petition for writ of certiorari, vacated the judgment affirming his conviction, and remanded for reconsideration in light of Rehaif.

On remand, Greer requested that the Eleventh Circuit vacate his conviction or, in the alternative, grant him a new trial, because the prosecution did not prove, nor was the jury instructed to find, that he knew he was a felon when he possessed the firearm.

The Eleventh Circuit concluded that although Greer had shown plain error, he could not prove that he was prejudiced by the errors or that they affected the fairness, integrity, or public reputation of his trial. To reach this conclusion, the court looked at the entire trial record and Greer’s previous convictions, not merely the evidence submitted to the jury. Greer again petitioned the Supreme Court for review.

Question

May a federal appellate court reviewing the decision of a lower court for plain error review matters outside the trial record to determine whether the error affected a defendant’s substantial rights or impacted the fairness, integrity, or public reputation of the trial.

Conclusion (Unanimous!)

A federal appellate court reviewing the decision of a lower court for plain error may review matters outside the trial record to determine whether the error affected a defendant’s substantial rights, and an error under Rehaif v. United States, is not a basis for plain-error relief unless the defendant first makes a sufficient argument or representation on appeal that he would have presented evidence at trial that he did not in fact know he was a felon. Justice Brett Kavanaugh authored the majority opinion.

Rule 51(b) of the Federal Rules of Criminal Procedure provides that a defendant can preserve a claim of error “by informing the court” of the claimed error when the relevant “court ruling or order is made or sought.” Rule 52(b) allows an appellate court to review for “plain error” “even though it was not brought to the court’s attention” if it “affects substantial rights.” Thus, the defendant must show that, if

the district court had correctly instructed the jury on the mental culpability element of a felon-in-possession offense, there is a “reasonable probability” that he would have been acquitted. If the defendant does not dispute the fact of his prior convictions, he has not met this burden. Such is the case here. Further, the Supreme Court has repeatedly held that an appellate court conducting plain-error review may consider the entire record—not just the record from the particular proceeding where the error occurred.

Justice Sonia Sotomayor authored an opinion concurring in part and dissenting in part. Justice Sotomayor noted that the Court’s analysis does not extend to harmless-error review and that the knowledge-of-status element is an element just like any other, which the government must prove it beyond a reasonable doubt, while defendants seeking relief based on Rehaif errors bear must prove only plain error. She joined the majority as to Greer’s case but as to Gary in the consolidated case would vacate the judgment below and remand so the Fourth Circuit below could address the question whether Gary can prove that the error affected his substantial rights. (oyez)

I highlighted this case because of this sentence, ". . . the prosecution must prove both that the accused knew that they possessed a gun and that they knew they held the relevant status . . . . "

I can see that someone can argue that they didn't know they were in possession of a weapon, e.g., someone put it in their car/bag, etc., but a convicted felon has to know they are a convicted felon.

I guess one exception could be if they were convicted in absentia and really didn't know.

[Dan Schiavetta]

He might not know if his priors were felonies or misdemeanors.

[Noscitur a sociis]

It’s possible to imagine genuinely ambiguous situations—California has a bizarre system where the same crime can be either a felony or a misdemeanor, the Ninth Circuit has some bizarre precedent saying that some Washington felonies don’t actually disqualify a person, there are any number of weird things where a conviction can be set aside and the process is opaque enough that I think a person could be genuinely confused about their status. None of that applies to this guy, of course, nor would it to any of the other post-Rehaif petitioners I’ve seen prior to this case.

[F.D. Wolf]

Ward Hunt was appointed to the Supreme Court by President Grant in 1873. Though officially a member of the Court until his retirement in 1882, Hunt suffered a debilitating stroke in 1878 and never participated in Court business afterward. He refused to resign because he would not have been eligible for a pension until achieving ten years of government service. Finally, Senator David Davis of Illinois (who had himself previously served as a member of the Court from 1862 to 1877) introduced a bill to allow Hunt to retire at full salary if he resigned within 30 days. The bill was passed, and Hunt resigned. Hunt would die four years later.

Hunt was a relatively insignificant justice, almost always siding with the majority. During his tenure, he dissented from the majority only 22 times, writing only four dissenting opinions. He is probably most notable as, in his role as circuit justice, having presided over the trial of Susan B. Anthony. United States v. Anthony, 24 Fed. Cas. 53 (C.C.N.D.N.Y. 1873) (No. 14,459).

Anthony had cast a vote in New York in a congressional race, though, of course, in New York (as in the rest of the country) only men could legally vote. She was charged with casting an illegal vote, which carried a potential penalty of a $500 fine and/or three years in prison. Anthony argued that the restriction of the franchise to men violated the Fourteenth Amendment. After the close of evidence, Hunt directed the jury to return a verdict of guilty, which it did. (Directed verdicts of guilty have since been found unconstitutional, as a deprivation of a defendant’s right to a jury trial.) Hunt sentenced Anthony to pay a $100 fine. Anthony defiantly declared she would never pay it (and she never did). Hunt did not threaten to jail her or enforce payment of the fine, which effectively ended the case. (Criminal appeals to the Supreme Court were not allowed at the time, but had Hunt jailed Anthony for refusal to pay the fine, she could have petitioned the Court for a writ of habeas corpus.)

[Dan Schiavetta]

I saw the Anthony trial re-enacted on the TV show “You Are There” (narrated by Walter Cronkite). This was 1972 when I was in high school. It surprised me that a judge could direct a verdict.

[Trinian]

” . . . in New York (as in the rest of the country) only men could legally vote. ” It was not quite the rest of the country, since in 1869, the Wyoming Territory Legislature enacted a bill granting women’s suffrage. Wyoming wouldn’t be admitted to the union as state until 1890.

[F.D. Wolf]

I meant in congressional elections. Wyoming Territory, where men outnumbered women six-to-one, became the first American jurisdiction to grant women general suffrage in an effort to get women to move there. (I don't think it was very successful).

But even before that, in some areas, some women had some voting rights, such as in school elections, or, in other places, widows could vote if their husbands had been able to.

[Trinian]

Indeed, women in Wyoming couldn't vote for a voting member of the US House of Representatives until Wyoming became a state in 1890. However, I believe they could vote for a non-voting member of the US House of Representatives (the territorial representative) beginning in 1869.

[The Margrave of Azilia]

"in an effort to get women to move there. (I don’t think it was very successful)."

Come to Wyoming, ladies - we've got wide open spaces, lots of handsome cowboys, and the ballot box for you! Just bring your positive, can-do attitude and a willingness to work from before sunup until after sundown!

[The Margrave of Azilia]

"(Directed verdicts of guilty have since been found unconstitutional, as a deprivation of a defendant’s right to a jury trial.)"

I know that since the 17th century judges can't put jurors in prison for giving the "wrong" verdict, but what was the decision that said they can't direct a criminal verdict? I am disappointed to hear that such a decision didn't come earlier.

[SRG]

since the 17th century judges can’t put jurors in prison for giving the “wrong” verdict,

You probably know this one, but for those who don't: https://en.wikipedia.org/wiki/Bushel%27s_Case

[F.D. Wolf]

I believe the first Supreme Court case to say a court could not direct a guilty verdict was Sparf v. United States, 156 U.S. 51, 105 (1895) ("[I]t is not competent for the court, in a criminal case, to instruct the jury peremptorily to find the accused guilty of the offense charged, or of any criminal offense less than that charged.")

[Syd Henderson]

So for the second day in a row, Blackman ignores the very important case of the day, first for the death of a retired Supreme Court justice, then for an obscure Justice's birthday?

[Syd Henderson]

And also National Socialist Party of America v. Village of Skokie, which is pretty famous.

[SRG]

And almost certainly inspired this classic scene:

https://www.youtube.com/watch?v=ZTT1qUswYL0

[Dan Schiavetta]

Note that the swastikas are reversed.

Good idea to cast Henry Gibson, the world's least scary actor, as their leader. We remembered his serious turn in "Nashville" but mostly he was still known for holding a flower and reciting insipid poetry on "Laugh-In".

[Magister]

The swastika on his armband is not reversed, and one flag appears not reversed (at 0:13, the flag on the right).

[F.D. Wolf]

For those who have not noticed, this exact post appeared at the exact same time on this day last year, just as it did the year before that, and so on back to 2020. The posts are scheduled. Factual errors and typos are never corrected. I think it is safe to assume on this day next year, at precisely 7:00 AM, we will once again be celebrating the birth of Ward Hunt.

[Rev. Arthur L. Kirkland]

Factual errors and typos are never corrected.

That is generally how these clingers role, although they occasionally correct a mistake without acknowledging the mistake or the correction.

[Frank Drackman]

My Bad, "Coach", I mean "Reverend"
you were actually only an "Ass-istant Coach (emphasis on the "Ass")
now you're just an Ass,
and a "Reverend"
and you're certainly not "better" than me at spelling,
it's "roll"

Frank

[Rev. Arthur L. Kirkland]

These are your fans and defenders, Volokh Conspirators.

And the reason even the atheists and agnostics among your law school colleagues (deans, especially) pray for your prompt departure.

Except, of course, at South Texas College of Law Houston, because America's worst law schools can't be choosy.

[Bob from Ohio]

"this day next year, at precisely 7:00 AM"

Of course. Its just a way to provide a link. I think he intentionally picked the most obscure things on purpose.

Its what makes the whining by his haters every daily post so much more amusing.

[Sarcastr0]

::Blackman does a thing that sucks::

::people mock him for it::

Bob: "I'm so amused by the whining of the haters!"

Not sure you really are amused, Bob!

[Bob from Ohio]

I am in fact amused, all the angry comments day after day responding to years old robotic posts is quite funny.

He'll never ever see a single "mocking" comment. You all sure show him!

[Rev. Arthur L. Kirkland]

Whether he observes the mocking is irrelevant to the point that he knows he is a disaffected fringe player mired at one of the worst law schools in America, with a collection of downscale, bigoted, ready-for-replacement fans.

[Dr. Ed 2]

"school had softened earlier versions of the pledge which other parents had said sounded “too much like Hitler’s”"

No, LOOKED like Hitler's -- straight arm extended, the Belamy salute.
See: https://en.wikipedia.org/wiki/Bellamy_salute

[Dan Schiavetta]

I read the Court's description of it but I assumed it wasn't that similar. Thanks!

[Dan Schiavetta]

Mansky applies only to people walking in to vote. Rules restricting what election workers can wear would still be in force.

It’s odd that election workers would have to be told not to wear a political message. You’d think they’d know that already!

[Dan Schiavetta]

ok

I’ll never forget when I was an election worker in 1984. The two Republicans at the table were a young guy who kept his nose in newspapers stock reports all day, and a retired guy who greeted people effusively and was pleasant but useless. While the other Democrat was New Age-y with his head in the clouds. I had to do the whole thing pretty much singlehanded.

[Rev. Arthur L. Kirkland]

I understand voters to be able to wear party- or candidate-marked shirts, hats, pins, shoes, glasses, etc. Walking billboards can't dawdle, but they are entitled to enter the polling place, stand in line, vote, and leave with reasonable dispatch.

Poll workers constitute a different context. After encountering poll workers who sold candidate-decorated cookies, distributed slate cards, sold candidate-marked straw hats, recommended candidates to voters, etc., at the election worker table over the years, I have settled on a zero tolerance policy. If someone shows up with any signal of partisanship, I no longer ask that person to remove the shirt or hat -- I have that person excused from poll duties that day.

I also have regularly removed boxes of cookies (meant for poll workers or voters) from the polling place when the boxes identify the candidate or party who donated them.

[Noscitur a sociis]

Mansky concluded that Minnesota's ban was too broad, but that states can completely prohibit apparel with name of a candidate, ballot initiative, or political party from polling places. Obviously, I would imagine that different states have made different choices as to whether and how far to do so.