The Volokh Conspiracy
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Today in Supreme Court History: June 20, 1837
6/20/1837: Justice David Josiah Brewer's birthday.
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Atkins v. Virginia, 536 U.S. 304 (decided June 20, 2002): executing intellectually disabled people (I think that’s the term for it now) is cruel and unusual punishment in violation of Eighth Amendment (overruling Penry v. Lynaugh, 1989, citing “evolving standards of decency” and the trend of states outlawing the death penalty in such cases) (defendant, convicted of armed robbery and murder, had an IQ of 59)
Smith v. Maryland, 442 U.S. 735 (decided June 20, 1979): attaching an offsite device to record calls from a house (a “pen register”) is not a “search” requiring a warrant because the person “voluntarily conveyed numerical information to the telephone company” (that’s a stretch, I think)
American Legion v. American Humanist Ass’n, 588 U.S. — (decided June 20, 2019): large cross in now-busy intersection originally erected to honor World War I veterans can stay where it is without violating First Amendment Establishment Clause (this is the “Bladensburg Peace Cross”, see the wikipedia article)
McDonough v. Smith, 588 U.S. — (decided June 20, 2019): Member of board of elections (McDonough) was charged with forging absentee ballots. He was acquitted and brought a §1983 suit against the prosecutor (Smith), who allegedly fabricated evidence. Here the Court holds that the statute of limitations for the §1983 suit began to run not when the evidence was adduced at trial but when the verdict came in. This case arose in Troy, N.Y., and from the opinion one sees that Smith and McDonough had a “history” in local politics and Smith’s (alleged) fabrication of the case against McDonough was hardly subtle. But the detailed trial court order finally granting summary judgment to Smith reveals a different picture, 2022 WL 3279348 (Aug. 11, 2022).
American Electric Power Co. v. Connecticut, 564 U.S. 410 (decided June 20, 2011): common law nuisance suit against power plants by downwind states alleging greenhouse gas emission preempted by Clean Air Act; remanded to determine effect of preemption (don’t know what happened afterward)
Dodd v. United States, 545 U.S. 353 (decided June 20, 2005): statute of limitations to sue for newly recognized right begins to run from date of court ruling recognizing new right, not from when a court declares it has retroactive effect (here, defendant convicted of continuing criminal enterprise cited Richardson v. United States, 1999, which declared for first time that jury must be unanimous on each criminal act, but argued that limitations period began with a 2002 Circuit Court decision declaring Richardson to be retroactive; this argument was rejected — seems like an unfair result)
Walter v. United States, 447 U.S. 649 (decided June 20, 1980): Boxes of films of gay male sex addressed to “Leggs” (pseudonym) instead got delivered to “L’Eggs Products” (makers of pantyhose) who called the police. When viewed these films revealed not only “bizarre” sex (would probably seem tame to us now) but also the name of the sender, who was arrested for obscenity. The Court holds that the FBI’s viewing of the films was a Fourth Amendment violation; they should have gotten a warrant. (What about the dumbfounded mailroom clerk at L’Eggs? At what point was he required to stop looking into the contents of what a United States agency had delivered to him? Wasn’t the delivery presumptively valid? — cf. the judge’s ruling in “Miracle on 34th Street”.)
National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (decided June 20, 1949): Congress could by statute modify the Constitution’s definition of diversity jurisdiction to include suits between D.C. residents and those of other states (instead of just between citizens of different states, which is how the Constitution reads; note that D.C. did not exist in 1787) (a complicated opinion, because the Court has to dance around a typically hardass ruling from John Marshall in 1804 holding that D.C. residents cannot bring diversity suits outside D.C. because it is not a “state”)
Utah v. Strieff, 579 U.S. 232 (decided June 20, 2016): improper search of drug dealer was overlooked, and all evidence found admitted, because it turned out there was a warrant for his arrest anyway, for a traffic violation
Gregory v. Ashcroft, 501 U.S. 452 (decided June 20, 1991): state judges can be automatically discharged at age 70 even though it’s age discrimination (federal age discrimination statute doesn’t apply) (did you know that the average age of active federal judges is 68?) (and that’s just the active judges — the average age of the senior judges is 113)
Just my guess, based on experience.
You do realize that half an average is *older*, by definition…
Assuming I understand Dr Ed 2 correctly, which is an uncertain thing at the best of times, that sounds like a median, not an average or mean (even if captcrisis was being a little mean to the senior judges).
Average of 1,2,3,4 and 100 is 22; only one is above and four are below.
Median of 1,2,3,4 and 100 is 3; equal numbers above and below (although not half because 3 is exactly the median).
How I read the opinions in the National Mutual Insurance D.C. diversity suit case:
Lead opinion (Jackson, Black, Burton): We would not deign to overrule the great John Marshall, who, in Hepburn & Dundas v. Ellzey (1805), wrote that D.C. was not a “state” under the Constitution or the Judiciary Act of 1789, so a resident of D.C. could not maintain a diversity suit, but he didn’t say Congress could not have included D.C. in the Act, and Article I gives Congress exclusive jurisdiction over D.C. in “all cases”.
Concurrence (Rutledge, Murphy): The attempt to distinguish this case form Hepburn is weak, and importing an Article I power into Article III is suspect. We should just overrule Hepburn.
Dissent(s) (Vinson, Douglas, Frankfurter, Reed): What the concurrence said, except we would affirm Hepburn. It might suck for D.C. residents that they can’t maintain a diversity suit in federal court, but that’s the way it is. D.C. is not a “state” under the Constitution, and Congress can’t make it one just by calling it one in a statute.
Thanks!
Douglas and Frankfurter – it must have been awkward for them to be on the same side.
About the climate case. According to the Sabin Center for Climate Change Law, “The parties to this case ultimately abandoned their state tort claims below. To our knowledge, no state has pursued a state tort action to gauge whether state tort suits are similarly displaced by the Clean Air Act.” See https://www.courtlistener.com/docket/4328427/state-of-connecticut-v-american-electric-power-company-inc/
About “downwind states alleging greenhouse gas emission”: It doesn’t matter which way the wind blows. Carbon dioxide mixes well. The standard measuring place for atomspheric CO2 is in Hawaii, far away from any major emitters. Connecticut warms about the same amount whether the carbon dioxide comes from power plant in Ohio or a burning rainforest in Indonesia.
Why have a standard measuring place far from major emitters? Because being downwind does affect the readings.
I’d guess the remote site gives smoother more consistent readings. If you measure freeway noise from a roadside position, you can distinguish every single car, maybe even each tire. As you get farther away, the individual noises collapse into a steady roar. But suitably calibrated, they are comparable.
It does not make sense. Downwind means downwind.
In the 1960s and 1970s clean air rules were evaded by building taller smokestacks in places like Georgia and Virginia. Downwind (for example, upstate New York) the resulting acid rain got so bad that some lakes were as acidic as vinegar. This is a matter of historical record.
If you are 1 meter downwind from people talking, you can distinguish their two voices easily.
If you are 100 meters downwind, they blur together.
Even your own example doe snot refute this. All the taller smokestacks did was blur the source, not eliminate it.
“It doesn’t matter which way the wind blows”
Any way the wind blows
Doesn’t really matter to me, to me
TBC, Smith didn’t say the cops could record calls- that is governed by Katz, which says they can’t without a warrant. The pen register in Smith recorded what we now call metadata- number dialed, time, length of call, etc.
I’m not a fan of the Smith decision either, but that’s still an important distinction.
Thanks. Will rephrase.
So, could they connect a device to record URLs visited on a computer or smart phone? I would have guessed that the decision for phones rested on the notion that callers communicated the number called to a human operator, even though that would be rare in 1979.
Utah v. Strieff broke down exactly as you expect except there was a vacancy. This took place during the period while the Garland nomination was pending and pending and pending…
Crisp dissent from Kagan:
“Consider an officer who, like Fackrell, wishes to stop someone for investigative reasons, but does not have what a court would view as reasonable suspicion. If the officer believes that any evidence he discovers will be inadmissible, he is likely to think the unlawful stop not worth making—precisely the deterrence the exclusionary rule is meant to achieve. But when he is told of today’s decision? Now the officer knows that the stop may well yield admissible evidence: So long as the target is one of the many millions of people in this country with an outstanding arrest warrant, anything the officer finds in a search is fair game for use in a criminal prosecution. The officer’s incentive to violate the Constitution thus increases: From here on, he sees potential advantage in stopping individuals without reasonable suspicion—exactly the temptation the exclusionary rule is supposed to remove. Because the majority thus places Fourth Amendment protections at risk, I respectfully dissent.”
In theory, people with outstanding warrants will inevitably be arrested.
And in Walter, they had plenty of time to get a warrant so it should have been unanimous. I can’t find a breakdown on that one. I guess Atkins v. Virginia is indeed the case of the day.
It’s been there since 1925 and has a plaque stating who and what it honors. Kagan and Breyer were okay with it, and Ginsberg and Sotomayor were not. The suit was brought by a Satanic Temple which I guess is free to create their own memorial.
Re: Walter, there’s an episode of Perry Mason that uses the same plot device to reveal the murderer while she’s on the witness stand. I wish I could remember the title. I wonder how many opinions have mentioned the Miracle on 34th Street hearing?
I think Columbo tried that once also. The bad guy was played by Dick Van Dyke and it involved a camera.
The “logic” of Atkins v. Virginia should men such a murderer cannot be punished at all.
Isn’t keeping him in a cell for life pretty “cruel”?
Government can protect you from nasty humans, even if they are not responsible fully (or at all) for their actions.
What about the guards and other prisoners?
¨The “logic” of Atkins v. Virginia should men such a murderer cannot be punished at all.¨ [sic]
Leaving aside your garbled syntax, Bob, I wonder whether you have read Atkins. SCOTUS did not rule that Mr. Atkins could not be punished; the Court remanded for further proceedings. 536 U.S. 304, 321 (2002). Indeed, after remand a jury again sentenced Mr. Atkins to death. (A judge later commuted the sentence to life in prison.) https://en.wikipedia.org/wiki/Atkins_v._Virginia
Atkins v. Virginia
“CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting.”
Colour me shocked. Atkins had the intellectual ability of a 9yo child. Would any of you execute a 9yo? But these goddards would.
https://en.wikipedia.org/wiki/Rayner_Goddard,_Baron_Goddard
According to his clerk, Goddard ejaculated when passing a death sentence on such a regular basis, that a fresh pair of trousers had to be brought to court on those occasions
LWOP. He had the intellect of a 9yo kid.
” What about the dumbfounded mailroom clerk at L’Eggs? At what point was he required to stop looking into the contents of what a United States agency had delivered to him”
Wouldn’t his testimony be grounds to grant the search warrant?
I meant federal common law claims. Will rephrase for next time.
You at least deserve a Reason T-shirt for all of the work you put in.
Thanks. (I think!)