Today in Supreme Court History: June 21, 1989

6/21/1989: Texas v. Johnson is decided.

Comments

[Dan Schiavetta]

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (decided June 21, 1971): federal officials can be sued for violation of Constitutional rights (just as state officials can be under 42 U.S.C. §1983) (such actions are now called “Bivens” actions) (here, FBI agents conducted improper drug search)

Texas v. Johnson, 491 U.S. 397 (decided June 21, 1989): struck down on First Amendment grounds laws in 48 states banning flag burning as a form of political protest (plaintiff had been prosecuted for flag burning outside the 1984 Republican convention)

Carson v. Makin, 596 U.S. — (decided June 21, 2022): if state is giving assistance to private schools (in places where there are no public schools — as the Court points out, “Maine is the most rural State in the Union”) it can’t exclude sectarian schools

South Dakota v. Wayfair, Inc., 585 U.S. — (decided June 21, 2018): states can collect sales taxes from suppliers who have no physical presence in the state (overruling National Bellas Hess v. Dept. of Revenue of Illinois, 1967, and Quill Corp. v. North Dakota, 1992)

​United States v. Taylor, 596 U.S. — (decided June 21, 2022): Hobbs Act crime (robbery with interstate component) is not a “crime of violence” as contemplated by the aggravated sentence statute, 18 U.S.C. §924(c) (use of firearm during “crime of violence”) (dissent by Thomas, who notes defendant was one drug dealer pulling a gun on another)

NCAA v. Alston, 594 U.S. — (decided June 21, 2021): NCAA’s prohibition on student athletes getting paid violates the Sherman Act; subjecting NCAA to antitrust analysis (unlike major league baseball in Flood v. Kuhn)

Hirabayashi v. United States, 320 U.S. 81 (decided June 21, 1943): upholding curfew on Japanese-Americans living on the West Coast during World War II as use of Congress’s War Power, art. I, §8, cl. 11; Stone’s opinion says that Japanese self-segregate and many are dual citizens of Japan (in 1987 Hirabayashi got his conviction vacated, 828 F.2d 591)

Guinn v. United States, 238 U.S. 347 (decided June 21, 1915): invalidating grandfather clauses exempting white people from written exam which everyone else (i.e., black people) had to pass in order to be allowed to vote (one imagines the written exams disappeared pretty quickly after this decision)

Colgrove v. Battin, 413 U.S. 149 (decided June 21, 1973): civil jury of six jurors instead of twelve does not violate Seventh Amendment

Florida v. Bostick, 501 U.S. 429 (decided June 21, 1991): police can’t search without a warrant even if person agrees to it after being told he had the right to refuse, if under circumstances person doesn’t feel free to refuse (here, police boarding bus searched passenger’s luggage, found drugs)

[David Nieporent]

Florida v. Bostick, 501 U.S. 429 (decided June 21, 1991): police can’t search without a warrant even if person agrees to it after being told he had the right to refuse, if under circumstances person doesn’t feel free to refuse (here, police boarding bus searched passenger’s luggage, found drugs)

The problem, of course, is that judges have proceeded to apply the "doesn't feel free to refuse" not by what real people feel, but by what upper class white law school graduates feel.

[Dr. Ed 2]

" police can’t search without a warrant even if person agrees to it after being told he had the right to refuse, if under circumstances person doesn’t feel free to refuse (here, police boarding bus searched passenger’s luggage, found drugs)"

Hmmm -- Boston MBTA does random searches and expels (from the transportation system, i.e. train) anyone who refuses. That would sound like "person does not feel free to refuse."

In fact they board buses and do exactly what is described here, kicking the person off the bus if refused.

[Dan Schiavetta]

They're not supposed to do that! Then again maybe they don't know.

Then again maybe the lawyers who do know have decided for some reason not to make a fuss about it.

[BrotherMovesOn]

They don't.
Dr. Ed is hallucinating again.

[apedad]

Does it make a difference if the reason for the searches are for security/health/welfare and not for criminal matters?

Isn't it like searching a bag at the airport or before a person goes into a govt bldg?

[Dan Schiavetta]

Possibly. The Fourth Amendment doesn’t deal with the purpose of a search/seizure, just that it not be “unreasonable”.

[apedad]

Administrative search: An administrative search is different from a criminal search, which aims to search evidence of a regulatory violation or for public interest. See Camara v. Mun. Court of San Francisco, 387 U.S. 523, 533 (1967). There are some administrative searches that do not require warrants: like vehicle checkpoints and roadblocks, factory or inventory searches, the detention of a traveler, residential institutions, cause of fire searches, and so on.

https://www.law.cornell.edu/wex/unreasonable_search_and_seizure

Does this apply to Dr Ed's example?

[John F. Carr]

Yes, subway searches are administrative searches, or are claimed to be. When the policy was announced the state said people who refused to be searched would not be allowed to ride and that's all. Possibly the people who said that believed it, but state law has no such limitation. Shortly after that the government won a case saying that if you were selected for an administrative search on entering a building you did not have the right to refuse and be evicted. If you tried to leave the security team could chase you down, beat you into submission, and then search you.

[Syd Henderson]

Oh cmon Wyoming and Montana are much more rural than Maine (although it is pretty rural outside of the southwest).

[Dan Schiavetta]

It seemed odd to me also. But that's what the Court said.

It says here that almost 50% of the state is "almost completely uninhabited":

https://subjectguides.lib.neu.edu/c.php?g=1214591&p=8884930

[Mr. Bumble]

As always it depends on the definition of what you are referring to. Per the 2010 US census Maine is in fact the most rural state in the US.

[SRG]

Kennedy’s famous remark in Texas:

"The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result."

Rehnquist’s dissent, on the other hand, is not really about the law at all. If he could have attached fireworks, apple pie and a sound clip of Ethel Merman singing “God bless America” he would have done.

[SRG]

BTW I get the sense that Bivens has been "distinguished" into oblivion. Is that just me, or has the SC effectively incrementally overturned it?

[David Nieporent]

BTW I get the sense that Bivens has been “distinguished” into oblivion. Is that just me, or has the SC effectively incrementally overturned it?

Not at all. It's 100% viable. As long as it's being employed by a plaintiff whose last name is Bivens who is suing DEA agents for an illegal search.

[The Margrave of Azilia]

In the Bivens case, the Supreme Court should have simply said: "Congress failed to provide a cause of action against federal officials who violate constitutional rights. Congress's inaction left a vacuum which can be filled by the states. Let plaintiffs use state laws to hold federal agents accountable."

Then Congresscritters would have tripped over themselves to adopt a federal cause of action, just to stop the states from filling the gap.

[John F. Carr]

A century or two ago one could sue a federal agent under state law. The necessity of the agent's action under federal law would be a defense. Congress erected barriers.

The Supreme Court would have to find the current system unconstitutional. In the 1970s the Supreme Judicial Court of Massachusetts announced its intention to abrogate sovereign immunity, which the justices thought was unjust, and gave the legislature a deadline to pass its own reform law as an alternative. The legislature passed its own reform law.

[Ein Heldenleben]

Contrary to popular belief, where the underlying conduct is unconstitutional, no federal court has ever addressed whether Congress even can erect barriers. For that matter, none has ever found that 28 U.S.C. 2679(b)(2)(A) doesn't already allow state tort suits (where the underlying conduct is unconstitutional).

[arbitrary aardvark]

Re Texas v Johnson:
Recently Eugene kindly posted a story I sent him of a crazy lady in Evansville Indiana being prosecuted for flag desecration. I keep an extra flag around in case we need to burn one in order to have standing to challenge the Indiana statute, which is still on the books, but normally not enforced. We have a local shortage of lawyers willing to take cases just for the potential legal fees under 42 usc 1983 et seq., and I'm still waiting for an estate to settle before I am in the position to hire anyone for these sorts of cases. Alternatively, I am willing to be the lawyer in such a case, but I'd be the first to say I am not a very good lawyer, and have a tendency to procrastinate; I'd rather be the client.

[Mr. Bumble]

The FBI played a role in both of those events and not for the better.

[Magister]

Yes, but maybe also driven by an increase in the amount of such purchasing, eating into sales tax revenue. it wouldn't have been hard for a state to establish a single fixed sales tax rate for such suppliers, and it seems unlikely that they wouldn't know what state they're shipping to. (Still presumably difficult if delivering something by email or download, though.)

[Ein Heldenleben]

The thing about Bivens and conservatives is that most conservative justices are formalists. They care a lot more about how you get somewhere and what they actually have authority to do than non-formalists would, who tend to only care about the result.

SCOTUS has been slowly gutting Bivens because it's unconstitutional, though they have yet to take note of the degree to which this is so (no litigant has asked them to). The United States, in the sense of the federal government, simply doesn't have the constitutional authority to order one American to pay damages to another (absent diversity) in such a case. Patents-yes. Admiralty-yes. General infringement of common law rights-no. This is true whether the right can be abrogated by Congress or not.

-But-

Washington similarly has no right to silence the force of state law. Congress can, of course, give its officers powers; absent amendment the states can't stop this. But where Congress cannot extend authority, it cannot immunize officers from the law of the state.

Also, if something is unconstitutional, it's unconstitutional. It doesn't become such when federal courts figure it out and say so. Since Congress creates 1983 suits, it can craft the remedy as it sees fit. But since Congress has no authority to immunize something unconstitutional, ignorance-of-law immunity aka "qualified immunity" isn't an option.

We thus should end up with something even better than Bivens. Why hasn't this been tried yet? Civil rights lawyers tend to be crusaders who don't think much of form, so they don't think of how to appeal to formalists.