Today in Supreme Court History: December 9, 2015

12/9/2015: Fisher v. University of Texas at Austin II argued.

Comments

[Dan Schiavetta]

MacMath v. United States, 248 U.S. 151 (decided December 9, 1918): clerk employed as “acting U.S. weigher” at collection port not entitled to $2,500 statutory salary assigned to weighers (collection ports were notoriously a gold mine of booty, but I suppose not for lowly weighers, “acting” or otherwise)

Warger v. Shauers, 574 U.S. 40 (decided December 9, 2014): enforcing Fed. R. Evid. 606(b): juror cannot testify, and court cannot receive affidavit, as to statements during deliberations (here, as to bias) (exceptions: jury considered extraneous prejudicial information; was subjected to outside influence; or foreman made a mistake on the verdict form)

Virginia v. Maryland, 540 U.S. 56 (decided December 9, 2003): What to do about the Potomac River? Charles I, as a favor to his friend Lord Baltimore, had set the Maryland border on the Virginia side of the river, instead of in the middle or along the thalweg; this decision overruled Charles and said Maryland couldn’t interfere with Virginia’s use of the river, in particular drawing water from it for drinking. (The Mount Vernon Conference of 1785, a precursor to the Constitutional Convention, had already made the same decision, but it no longer had legal force.)

[Dr. Ed 2]

They drink that water?!?

[Mr. Bumble]

Virginia v. Maryland, 540 U.S. 56 (decided December 9, 2003):

Hard to believe that this wasn't subject to any previous challenge.

[Dr. Ed 2]

I was right: “The Maryland Department of the Environment (MDE) first denied such a permit when, in 1996, the Fairfax County, Va., Water Authority sought permission to construct a water intake structure, which would extend 725 feet from the Virginia shore above the River’s tidal reach and was designed to improve water quality for county residents. Maryland officials opposed the project on the ground that it would harm Maryland’s interests by facilitating urban sprawl in Virginia…

As I understand it, Virginia had the right to draw water from the river, but (starting in 1933) had to ask Maryland permission to install the pipes, which Maryland always had done until this time, hence the suit was filed now.

Back to my original: If there are high and low tide lines (mentioned in the suit) then the river is tidal with the ocean pushing water back up into the river. Which makes you wonder how "brackish" the water is, i.e. how much salt is in it. (Salt we now know not being good for people.) Not to mention how clean the water is although it may matter where they are taking the water from.

[Magister]

Right about what, that they drink water obtained from that river? It's in the case summary posted. It would become drinking water only after significant treatment and with required testing of water quality.

" In 1933, Maryland established a permitting system for water withdrawal and waterway construction within her territory." That seems somewhat different from "Virginia ... had to ask Maryland permission"; they chose to do so and apparently successfully challenged the first denial.

Sodium was known not to be good for people for a long time. Although sodium level is not regulated, it is widely tested, and the plan to take water from above the tidal reach seems consistent with avoiding salt contamination. (Not certain over time, as with recent difficulties in Louisiana brought on by drought affecting the Mississippi River which allowed more salt higher up in the river.)

[Dr. Ed 2]

I suspected that it was a modern environmental issue that upset a situation that Virginia could live with and hence that was why this didn't go to court until now.

A freshwater tidal river -- well, it's possible it doesn't have sodium in it, but I'd be surprised if there wasn't at least a little because the fresh water will attract it. This could be well below the level of taste, I believe that water softeners put a little bit into the water. I will admit that I don't know.

[Magister]

I don't see what "the fresh water will attract [sodium]" would mean. Louisiana suffers now because the Mississippi isn't flowing sufficiently to keep salt from the Gulf of Mexico away from where they take water.

It's not clear that environmental concerns caused Virginia to try this in 1996, although the opinion mentions improving water quality; it may have been that existing sources were not of equal quality. From Maryland's concerns over sprawl, it may just have been the need to get more water for an increased population.

[F.D. Wolf]

In Tanner v. United States (1987), the Court held that juror testimony that several jurors had consumed copious amounts of alcohol, marijuana, and cocaine during the trial and deliberations could not be considered to impeach a verdict, reiterating the ancient rule that the secrecy of jury deliberations is sacrosanct and cannot be pierced, with very rare exceptions (for example, the jury decided to flip a coin to decide the verdict). In Warger (2014), in a unanimous opinion by Justice Sotomayor, the Court reiterated this principle.

So, many were very surprised just three later when, in Pena-Rodriguez v. Colorado (2017), the Court ruled that a court MUST consider juror testimony that a juror had made biased comments about Mexicans in a case with a Mexican-American defendant, reversing the Colorado Supreme Court, which had naturally relied upon Tanner and Warger. (This was a 5-3 decision made after the death of Justice Scalia and a month before Justice Gorsuch joined the Court).

[Dan Schiavetta]

Thanks!

[Dr. Ed 2]

Hmmmm, would Pena-Rodriguez apply to the Jan 6th defendants if similarly biased comments are made?

[David Nieporent]

Is "J6 defendant" a racial group?

[Dr. Ed 2]

"White" is -- wasn't that the basis of Fisher's suit?

[SomeGuy 2]

If you're an approved ethnicity, then really the best thing possible is a racist juror.

If it's an acquittal, then hey it's an acquittal! No do-overs. If it's a guilty verdict, you get to try again.

[Dr. Ed 2]

The point Atticus Finch made in _To Kill a Mockingbird_ is that a racist-but-fair juror would be to his advantage.

But the point I am making is that this gives SCOTUS a way to throw out ALL the trials by preserving the precedent that a racist juror is grounds for overturning the verdict -- racist against any defendant.

[Magister]

Dr. Ed 2 proposes to throw out convictions because somebody else's jury had a racist juror? So, they can't convict anyone if any juror elsewhere makes biased comments about their race, ethnicity, national origin or whatever?

SCOTUS is not going to reach for a way to exonerate January 6th insurrectionists.

[Dr. Ed 2]

Didn't SCOTUS throw out ALL death penalties with one case?

And the Mass SJC threw out thousands of drug convictions because of problems with the drug lab -- and some of those perps were guilty, actually, most of them likely were.

What I am wondering about -- genuinely wondering about -- is SCOTUS saying that the DC jury pool was *so* tainted than none of the trials were fair and throw them all out en masse.

[Magister]

They threw out the death penalty in 1972, but with multiple opinions; it was allowed back when issues of bias in its application were addressed. It seems unlikely that SCOTUS will declare all jury results in the DC federal courts to be tainted because some jurors may have been too racist against white people for a fair trial.

[The Margrave of Azilia]

"several jurors had consumed copious amounts of alcohol, marijuana, and cocaine"

Judges should use that excuse for their bad opinions.

Depending on how bad the opinion is, they might want to blame shrooms.

[Dr. Ed 2]

Whatever happened to Fisher herself -- a woman who is now in her 40s.

The untold damage of 60 years of affirmative retribution is the White lives and dreams that it has destroyed. I'm wondering how much of the national malaise, the so-called "great resignation" is being caused by the cumulative effect of this. People saying that hard work and merit don't matter, so fuck it...

[Rev. Arthur L. Kirkland]

The Volokh Conspiracy: Official Legal Blog of Pathetic White Grievance

Brought to you by the Federalist Society, the Heritage Foundation, and Leonard Leo

[LawTalkingGuy]

“A woman who is now in her 40s”

You really just make shit up, huh?

[Mr. Bumble]

It's a fine tradition on the VC, practiced by many.

[Dr. Ed 2]

No, I confused Fisher and Grutter (who applied to law school at age 43). Fisher is now a woman in her 30s and the question still remains, both with her and the massive numbers of White people whose dreams affirmative action destroyed.

As to what Barbara Grutter did, we don't have to speculate because CIR tells us:

"While not able to attend law school, Barbara focused on running her Michigan-based health care consulting company and raising her two children. In 2005, Barbara helped organize and then served on the board of directors of “Towards a Fair Michigan,” an organization dedicated to fostering public discussion about race preferences in the lead-up to the Michigan Civil Rights Initiative."
https://www.cir-usa.org/case/gratz-v-bollinger-grutter-v-bollinger/gratz-grutter-frequently-asked-questions/

[LawTalkingGuy]

You also don’t have to speculate about Fisher. She’s fine. She got a degree from LSU and works in finance.

[Dr. Ed 2]

There are a lot more who aren't.

[LawTalkingGuy]

I mean if that’s the case there would have been a much much better plaintiff than Abby Fisher.

[SomeGuy 2]

This demand for a perfect plaintiff sure seems selective. The entire point of the regime was to discriminate in favor of blacks and to a lesser extent latinos, which necessarily means discriminating against everybody else. Somebody got left out because of their race and if you accept that university education leads to better life outcomes, then some whites and asians were denied those outcomes because they were born with the wrong color skin. To argue that this isn’t the case, you basically have to argue that attending college doesn’t matter and/or what college you attend doesn’t matter, which universities of course don’t argue.

Nobody does this sort of “well, the plaintiff is fine even if they were discriminated against, they could eat at a different lunch counter” with black people. It’s only white people that get the microscope when their civil rights are violated.

[LawTalkingGuy]

I mean it kind of does matter if the plaintiff wouldn’t have been admitted regardless of whether race was a factor or not. And white students with worse credentials were admitted over her and black and Latino students with better credentials were denied admission. She was a very bad plaintiff for this challenge because she was not discriminated against in any way shape or form.

[Dan Schiavetta]

FWIW, posted here on Nov. 29:

Texas v. Lesage, 528 U.S. 18 (decided November 29, 1999): white applicant to state university can’t argue that affirmative action was Equal Protection violation when he would have been denied entrance even under race-neutral regime

[Dr. Ed 2]

I'm being vague here because I have to be -- and you wouldn't believe me even if I gave all the specifics -- but I once tried to find a plaintiff for an entity that wanted to find an undergrad to sue UMass over a civil rights issue -- and I couldn't find one.

They were all afraid that it would hurt their future job prospects -- and probably right.

[Magister]

Pretty much as David Nieporent predicted.

[Magister]

Barbara Grutter was 43 in 1996 when she applied for law school, so the "woman who is now in her 40s" would have to be someone else you heard about at your Only White Lives Matter rallies.

[David Nieporent]

Now he's going to tell us that he mixed both of them up with yet another person, who also won't be in her 40s, and then he'll recite some fabricated anecdote about UMass from 1975 that has nothing to do with the topic.

[David Nieporent]

Abigail Fisher is now 33, which is kind of like "in her 40s."

But remember that Dr. Ed doesn't make things up.

[Dr. Ed 2]

Abigail Fisher would be in her 40s if it was she who filed the suit that Barbara Grutter did, i.e. when Grutter did.

So I confused two victims of affirmative retribution -- there are probably a few million more....

[David Nieporent]

Abigail Fisher would be in her 80s if she were born during World War II.