The Volokh Conspiracy
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Today in Supreme Court History: July 7, 1893
7/7/1893: Justice Samuel Blatchford dies.
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Commodity Futures Trading Comm’n (CFTC) v. Schor, 478 U.S. 833 (decided July 7, 1986): no separation of powers problem with statute allowing CFTC hearing reparations proceedings against brokers to also have (non-exclusive) jurisdiction over state law counterclaims even though not an Article III court with no trial by jury
Bowsher v. Synar, 478 U.S. 714 (decided July 7, 1986): separation of powers violated by Congressional agency official whose deficit reductions the President was bound to follow (this decision basically invalidated the Gramm-Rudman-Hollings Act, an attempt to control the Reagan-era deficit explosion) (a cartoon at the time showed an overweight Congressman walking on a log to cross a river and then the log went “poof!”)
University of Tennessee v. Elliott, 478 U.S. 788 (decided July 7, 1986): District Court evaluating racial wrongful termination claim not bound by ALJ determination of no racial intent (not a state court judgment so 28 U.S.C. §1738, requiring federal court to give “full faith and credit”, does not apply)
Bethel School District v. Fraser, 478 U.S. 675 (decided July 7, 1986): First Amendment did not protect smartass student’s telling of dirty jokes at school assembly (or “Ass – sembly” — cue Beavis & Butthead laugh huh-huh huh-huh)
Merrell Dow Pharm. v. Thompson, 478 U.S. 804 (decided July 7, 1986): violation of FDA guidelines did not create federal law issue (esp. since Congress did not provide for a private right of action) and so no federal court jurisdiction over case alleging birth defects due to misbranded drug
Arcara v. Cloud Books, Inc., 478 U.S. 697 (decided July 7, 1986): fact that premises used for soliciting prostitution also sold (adult) books did not create First Amendment issue when premises (signed as a bookstore) was closed by local police
Sam Fox Publishing Co. v. United States, 364 U.S. 801 (decided July 7, 1960): can’t intervene as of right (FRCP 24) to change a consent decree to which one is not bound (music publisher objected to so-ordered agreement between other publishers and ASCAP, an association of songwriters)
O’Brien v. Brown, 409 U.S. 1 (decided July 7, 1972): during 1972 Democratic Convention, staying Court of Appeals judgment that Credentials Committee should not have unseated delegates (suit had been brought in District Court just four days before!) (re: that convention, see Hunter S. Thompson’s fascinating account in “Fear and Loathing on the Campaign Trail” of Humphrey’s attempt to game the rules so as to deny the nomination to McGovern, and how this was prevented by McGovern’s forces deliberately losing a vote on a point of order) (I remember Walter Cronkite on TV declaring that McGovern’s nomination was now in danger, then the cut to McGovern headquarters and the correspondent saying, “I don’t mean to disagree with you Walter — but why are all these kids cheering?”) (Humphrey’s clueless aides were also jubilant, but Humphrey soberly said, “No, they pulled that deliberately”)
It really is preposterous that anyone thought there was a federal issue, let alone a constitutional one, in the DNC’s decision as to what delegates to seat at its convention. O’Brien is a nice example of how tempting it is for federal judges to decide political questions.
On the other hand, are the parties actually private entities?
They are. Obviously they can be considered state actors in some ways, see Smith v. Allwright, but that doesn’t mean there’s a free floating power under the Due Process Clause for federal judges to determine delegate seating at a party convention.
The issue, which I remember from when it happened, was whether some states’ winner-take-all slate of delegates system violated Equal Protection. There was also an issue (not at suit) as to competing slates from Georgia (I think) which were winner-take-all or based on racial proportions (my memory is hazy on this). Thompson’s book went through this in detail. He was a fantastic reporter and a fantastic writer.
The contrast with the Republican Convention (held the next month) is something we’ve become accustomed to now. Democrats are a big, sloppy, diverse, multiracial party, whereas Republicans march in white lockstep behind a Dear Leader. It was amusing when a reporter got a hold of the Republican Convention’s “script”. Apparently at 8:24 p.m. the proceedings were scheduled to be “interrupted” by an announcement from the chair to please clear the aisles. Of course, the aisles were empty. And the lone non-Nixon delegate (for Pete McCloskey) didn’t get seated at all.
Nowadays, all party conventions are like the 1972 Republican Convention.
But on the legal issue, the Supreme Court was right and Marshall, Douglas, and the lower courts are crazy. If there’s a white primary, sure, the courts can get involved, but proportional representation vs. winner take all? That’s the party’s choice and it’s a pretty severe infringement on the party’s First Amendment rights for federal judges to think they have a say in that.
It’s too bad the conventions aren’t covered any more. At least on the Democratic side, there are still disputes that have to be hammered out as to what will be in the party platform (not on the Republican side — they had no platform in 2020 except to support their Dear Leader).
The media stopped covering the conventions when fights over nominations became a thing of the past. The media is either too lazy, or unwilling, to cover issues. All they care about is the “horse race” and once that dropped out of the picture so did they.
Every convention is a week-long affair bringing together party members from all over the country. Some interesting conversations take place. There are a lot of side presentations and panels and committee meetings on various issues. You can see this from the programs that are handed out to delegates (some from the past are available online). And I’m convinced all this can be covered in a way that makes important fights over the platform interesting to the viewer. It will hopefully get people more interested in politics for real reasons and created a better idea of identity for someone who says “I am a Democrat” or “I am a Republican”.
But, again, the media aren’t interested. We’re told the “platform” is no longer important. False. It has a great deal of importance as to what the party will be pushing in Congress and (if they win) in the White House.
“they had no platform in 2020”
A lie.
“The Republican National Committee’s Executive Committee voted on June 10, 2020, to adopt the same platform the party used in 2016. ” Ballotpedia
To say that is to exalt form over substance.
They didn’t even bother to look at their 2016 platform, most of which was specifically aimed at “President Obama”, who by then had been out of office for 3 1/2 years. Instead, they officially endorsed Trump’s “America First” platform, the specifics of which he had never bothered to tell them.
Bethel School District v. Fraser, 478 U.S. 675 (decided July 7, 1986): First Amendment did not protect smartass student’s telling of dirty jokes at school assembly (or “Ass – sembly” — cue Beavis & Butthead laugh huh-huh huh-huh)
Well, now we know where Frank Drakman was in 1986.
What’s disappointing is it wasn’t unanimous.
How so?
The dissenters denied the right of govt. schools to impose basic discipline on students. The fact that the matter was considered controversial is indeed unfortunate.
Oh, I see, Justice Stevens’ dissent emphasized the due process issue – “if a student is to be punished for using offensive speech, he is entitled to fair notice of the scope of the prohibition and the consequences of its violation.” and “a strong presumption in favor of free expression should apply whenever an issue of this kind is arguable”
So if the school district had specifically said, “don’t be indecent, defined as [clear definition],” then even the dissent would have been OK with disciplining the kid.
If they’d had a specific section against such conduct in the student handbook (presumably vetted by their attorneys), then maybe the decision would have been unanimous, but the quibble still doesn’t convince me.
“deny the nomination to McGovern”
Good thing that failed! No stopping the McGovern express that year!
Apparently the Nixon campaign, despite incumbency and the Southern strategy, was worried enough to break in to Democratic headquarters. (Well, more likely “arrogant enough”.)
Those decisions dated July 7, 1986, would turn out to be the last of the Burger Court.
CBS News clip from June 17, 1986, in which President Reagan (alongside Chief Justice Warren Burger, Justice William Rehnquist, and D.C. Circuit Judge Antonin Scalia) announces Burger’s retirement and his intended nominations of Rehnquist and Scalia:
https://youtu.be/XHJUdN7chsA
I was struck by many things in that video, perhaps primarily by how slim Scalia appeared. (He packed on a lot of weight during his Supreme Court tenure). Dan Rather, from the studio, solemny intones that, “Chief Justice Burger has resigned from the Court; William Rehnquist is the new Chief Justice, and ‘Anton’ Scalia is the new member of the Court.” None of that, of course, was technically correct (not for another several months, at least).
When did “correct” technically or otherwise matter to Dan Blather?
Burger would soon retire. Maybe he was getting too old to “crack the whip” and get things finalized and published.