Today in Supreme Court History: June 28, 2010

6/28/2010: McDonald v. City of Chicago is decided.

Comments

[The Margrave of Azilia]

As usual, the post leaves out some other important cases:

King Kong v. Godzilla
Godzilla v. Mothra
Godzilla v. Mechagodzilla

[Syd Henderson]

Kramer v. Kramer

[Dan Schiavetta]

Bork v. Bird

[SRG]

Jarndyce v Jarndyce
Alabama v Gambini

[Mr. Bumble]

Welcome to a new VC feature:
Wednesday Comedy.

[SRG]

I was hoping to add "Twist v Bumble", or possibly "Bumble v Bumble" but no such cases are referred to. Implicitly there would have been Regina v Fagin.

[Mr. Bumble]

Got a lot of time on your hands?

[SRG]

No – it’s all stored in long-term memory with rapid access mode permanently enabled.

Still, I thought you'd approve of the personal reference 🙂

[Dan Schiavetta]

“The law is a ass — a idiot.”

[Mr. Bumble]

More so today than ever.

[bernard11]

Sunday is the 60th anniversary of the highly celebrated Spahn vs. Marichal.

[wolfefan]

I've been rereading the Bill James Historical Abstract and the Neyer/James Guide to Pitchers. I wish I could have seen that game.

[Dan Schiavetta]

Two high kickers, one about 50 years older than the other.

[Mr. Bumble]

That was also the year Marichal hit the first of his four major league home runs. An out of the park shot over the left field roof of the Polo Grounds against the Mets.

[Frank Drackman]

Spahn almost hit one out in this game, hitting a double high off the wall in the 7th(A Pitcher! at Candlestick! at Night! still pitching in the 7th inning!) Glad we don't let these guys hit any more (sarcasm intended)

Frank

[Frank Drackman]

Whats really amazing is they played 16 innings in 4.25 Hours, until this years rule changes that was just a slightly longer than average game.

[not guilty]

It's not a lawsuit, but I hope that some day South Carolina and Oregon State meet in a bowl game.

[AmosArch]

I’m not sure why people can’t understand after all these years that these posts are simply meant as a link to the short analysis of a case in the youtube video, not as an exhaustive overview of everything that happened that day in the post itself.

[Dan Schiavetta]

As far as I’m concerned that’s all to the good.

[Noscitur a sociis]

Including the ones that don’t mention the case or link to a YouTube video?

[Dan Schiavetta]

McDonald v. City of Chicago (decided June 28, 2010): Second Amendment right identified as to federally administrated areas in District of Columbia v. Heller, 2008, also applied to states (i.e., incorporated by the Fourteenth Amendment)

National Federation of Independent Business v. Sebelius, 567 U.S. 519 (decided June 28, 2012): upheld the Affordable Care Act’s mandate for everyone to buy insurance as exercise of Congress’s taxing power (which can be used to provide for country’s “general welfare”)

United States v. Alvarez, 567 U.S. 709 (decided June 28, 2012): Stolen Valor Act (criminalizing false statements about one’s military decorations) struck down on First Amendment grounds (though shame still has an effect: remember Admiral Boorda who committed suicide after he was caught in a lie about just one medal on his “fruit salad”?)

United States ex rel. Brown v. Lane, 232 U.S. 598 (decided June 28, 1914): upheld Secretary of the Interior’s right to remove “for good cause” all the members of a tribal council elected by tribe members without notice or hearing or right of appeal (i.e., in reality it could be “for bad cause” or “for no cause at all”)

Lemon v. Kurtzman, 403 U.S. 602 (decided June 28, 1971): First Amendment not violated by statute allowing public funding of religious schools of secular subject textbooks and materials; established the “Lemon test”, where the statute has to 1) have a secular purpose 2) not have the effect of advancing or inhibiting religion and 3) not result in excessive entanglement with religion

North v. Russell, 427 U.S. 328 (decided June 28, 1976): Equal Protection not violated when lower criminal courts in small towns could have nonlawyer judges when in city courts judges had to be lawyers; first level of appeal in small towns was to courts with lawyer judges

Nixon v. Administrator of General Services, 433 U.S. 425 (decided June 28, 1977): Nixon could not deny request for records created while he was President (might have been a different result if he could argue self-incrimination, but he had been pardoned by Ford)

Regents of University of California v. Bakke, 438 U.S. 265 (decided June 28, 1978): race can be used as factor in admission to public university (here, the University of California, Davis Medical School) but quotas are impermissible

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (decided June 28, 1993): expert opinions in federal court (even as to state law claims) have to be based on reliable principles reliably applied; this holding was later encoded as amendment to Fed. R. Evid. 702

Mitchell v. Helms, 530 U.S. 793 (decided June 28, 2000): First Amendment not violated by government loans to religious schools for secular programs

Stenberg v. Carhart, 530 U.S. 914 (decided June 28, 2000): struck down Nebraska statute making “partial birth abortion” illegal even if mother’s life endangered; this was held inconsistent with Roe (but is the Nebraska statute really revived under Dobbs?)

Hamdi v. Rumsfeld, 542 U.S. 507 (decided June 28, 2004): U.S. citizen can be detained as an “enemy combatant” but has the right to habeas corpus with due process; effectively superseded by the Military Commissions Act of 2006 which stripped federal courts of jurisdiction

[John F. Carr]

A motion would be required to terminate the injunction against enforcement of Nebraska's partial birth abortion ban. If a hypothetical evil twin Nebraska had turned blue in the past 20 years then the Attorney General might decline to make such a motion.

It doesn't really matter. Nebraska has a recently-enacted 12 week limit for abortion. Presumably the new law is not subject to an injunction. I don't know what circumstances now justify a late abortion.

[SMP0328]

One way Nebraska could get out of the injunction would be via FRCP 60(b). New York City did this in Agostini v. Felton 521 U.S. 203 (1997).

[Brett Bellmore]

The basis for that partial birth abortion ban not having an exception for the life of the mother was that there are essentially no circumstances where a partial birth abortion is necessary to save the mother's life; At the point where you'd be doing the procedure, you could just go ahead with a live delivery.

[The Margrave of Azilia]

“North v. Russell”

The judge was a coal miner.

https://www.youtube.com/watch?v=ed0UgcXZCh8

In all seriousness, that one judge had a distinct lack of training – judges (lay or lawyerly) tend to get trained. And there’s a fairly long tradition of lay adjudiction.

[Syd Henderson]

You can tell we're nearing the end of a lot of Supreme Court sessions when we get this many major cases on the same date. There are about six here that could have been case of the day.

[Dan Schiavetta]

It’s easy for me to pick ten cases for this date. I could have picked 20.

After about July 6, it will get pretty thin. Almost all will be motion decisions by the Justices in their capacity as Circuit Justice.

[Krayt]

Speaking of which, lots of releases the past week, zero commentary by the bloggers. Strange. This should be their Christmas shopping season, their Wednesday before Thanksgiving busiest travel day of the year, their Super Bowl busiest pizza ordering day of the year.

[Michael P]

Since Monday, Blackman has been doing his usual, EV posted on the true-threats case, Somin argued that Gorsuch's pro-Indian tendencies are legitimate mindset rather than improper bias, and Adler discussed "special solicitude". Were you expecting more quick-turn commentary, or just hot takes?

[Krayt]

I don't know what I was expecting, just surprized at limited responses.

[SRG]

Scalia et al never liked the Lemon test because they never believed in secularity in the first place. It took the religious right 40 years finally to kill it, but they managed it.

The new Lemon test:

Does the legislation (or other action) explicitly say that nonbelievers will go to Hell?

If the answer is "no", why then, the legislation (or action) is constitutional.

[Rev. Arthur L. Kirkland]

As religion continues to diminish -- in just about every way, and perhaps at an accelerating pace -- as a part of modern American life, people favoring religious claims may come to regret some of the recent decisions that favor religious claimants in current circumstances but could be used against them in an evolving environment.

[EscherEnigma]

That reminds me of a case I read about today [link]

Basically, a Utah high school let kids out early, and one student used the extra time to bang his girlfriend. When his parents found out, they sued the school.

According to the judge (who tossed the right-violation claims), the parents were basically arguing that the school had a constitutional duty to help them be helicopter parents, and because it hadn't done enough, their rights to parent and religion were violated.

So yeah. Some people absolutely think that they have a constitutional right for the government to enforce their religion. This time, least, they were swatted down.

[Magister]

Eugene wrote about that case.

https://reason.com/volokh/2023/06/23/schools-lack-constitutional-obligation-to-try-to-keep-students-from-having-sex-in-the-parking-lot/

[John F. Carr]

In those days the Supreme Court also upheld Massachusetts' two trial system, which was abolished by statute in the 1990s.

Now we have a two trial system for noncriminal traffic cases. The state Supreme Court has said that error in the first trial can not be the subject of an appeal. One may claim a de novo trial and that is all. The magistrates who preside over the first trials are well aware that nobody is allowed to complain about their acts. Because so many drivers went to court the legislature added a fee to contest a traffic ticket and a higher fee to request a de novo trial before a real judge. A federal judge ruled that the fee had to be refundable if the driver won.

Other states deal with the problem of drivers pleading not guilty by making traffic violations regular misdemeanors with a non-criminal or at least non-jailable standard deal. Plead guilty, pay a fine, and you are free. Plead not guilty and the judge can throw you in jail.

[Dan Schiavetta]

The state was Kentucky, and I imagine this two-tiered setup was necessitated by the dearth of lawyers in outlying areas who could serve as judges. And perhaps so many of the litigants were pro se that lawyer costs were not an issue, and filing costs were minimal. Just my guess.

I traveled in eastern Kentucky in those days, struck both by the beauty of the mountains and the poverty. Old style fundamentalism (and by that I mean “hard shell” shape-note singing Baptists) and liquor stores. Some of those street front preachers almost converted this Northeastern liberal, they were so good at what they did.

[The Margrave of Azilia]

Can you think of any way in which these things are different from each other?

[The Margrave of Azilia]

Should I have said "a long *legal* tradition of lay adjudication being accepted *by law*"? You don't think that was implied in my remarks? Very well then, I'll add it.

[Brett Bellmore]

Literally, it was passed at the federal level after the AMA came out and stated that PBA was never medically necessary. They've never repudiated this position.

[The Margrave of Azilia]

I said there *is* a tradition of lay adjudication, not that there *was* a tradition which no longer exists.

Here is a photo of your intellectual superior:

https://thumbs.dreamstime.com/b/box-rocks-isolated-white-corrugated-cardboard-holds-several-colorful-small-rock-parcels-background-37986604.jpg

[ReaderY]

I don’t understand this argument. But for the 13th Amendment, slavery might be legal today. And fortune telling is still illegal in many states – here’s an article mentioning that it’s illegal in New York. Some state courts have struck down thwir laws on fortune telling, but the US Supreme Court never has. It’s commercial speech, and tradition in fact favors constitutionality, just like for obscenity, libel, etc.

Your argument that something is absurdly, obviously wrong is weakened when it turns out that it’s in fact the case. Prohibiting commercial fortune telling may be a rather weakened form of a witchcraft law. But it is one.

https://www.theatlantic.com/business/archive/2014/11/when-is-fortunetelling-a-crime/382738/

[Sarcastr0]

Brett, the very terms you use show you're reading like LifeSiteNews and taking it as fact without even checking anywhere.

partial birth abortion is not a term that's well defined. Indeed, I'm quite skeptical the AMA ever came out and said anything on it. (My Googling didn't find anything like that)
Late-term abortion does have a definition - post-20 weeks. And that is established medically necessary in plenty of circumstances.
And sometimes not really an abortion due to a life-ending birth defect that doesn't allow the child to live without placental support.

[Mr. Bumble]

"...partial birth abortion is not a term that’s well defined."

An abortion in which the person performing the abortion, deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and performs the overt act, other than completion of delivery, that kills the partially delivered living fetus. (18 U.S. Code 1531)"

[not guilty]

I don't know if a court would refuse to delve into that kind of inquiry. On appeal from a conviction of the offense of disturbing "the peace of others by profane language", the Alabama Court of Criminal Appeals opined "that to constitute profanity an accused must imprecate divine vengeance upon an individual and that while the expression 'God damn you' is considered profanity, 'God damn it' is not." Baines v. City of Birmingham, 46 Ala. App. 267, 271, 240 So.2d 689 (Ala.Crim.App. 1970).

SCOTUS vacated and remanded the decision of the Alabama court for reconsideration in light of Cohen v. California, 403 U.S. 15 (1971).

[The Margrave of Azilia]

You think you're quite a wit, and you're half-right.

[Sarcastr0]

I have that guy blocked, but closest you could come is the dilation and extraction procedure, but IIRC that definition was edited some by the pro-life folks to make their semantic partial birth push.

[Mr. Bumble]

Guess you are easily amused. That is the definition in the law.
Medically it is generally referred as intact dilation and extraction.
Care to define that term?
Medically it is referred to intact dilation and extraction or IDX>
Wiki definition:
Intact dilation and extraction (IDX) is a type of late term abortion. It is also known as intact dilation and evacuation, dilation and extraction (D&X, or DNX), intrauterine cranial decompression and, vernacularly in the United States, as partial birth abortion. The procedure may also be used to remove a fetus that is developed enough to require dilation of the cervix for its extraction.[1]
Is that better?

[Brett Bellmore]

https://www.washingtonpost.com/archive/politics/1997/05/20/ama-backs-partial-birth-abortion-curb/25b1a41c-1217-459b-b739-10cfe659a4be/

https://us.cnn.com/ALLPOLITICS/1997/05/14/ama.abortion/

"A section of the 32-page report reads, "According to the scientific literature, there does not appear to be any identified situation in which intact D&X is the only appropriate procedure to induce abortion." Intact D&X, or dilation and extraction, is the medical term used by the AMA to describe the late-term abortion procedure."