Today in Supreme Court History: January 7, 1972

1/7/1972: Justices Lewis F. Powell and William H. Rehnquist take oaths.

The Burger Court (1972-1975)

 

Comments

[Dan Schiavetta]

Marsh v. Alabama, 326 U.S. 501 (decided January 7, 1946): Alabama statute requiring people to leave private property when asked violates First Amendment (and Fourteenth Amendment) when property is open to the public (this was a Jehovah’s Witness on the sidewalk of a “company town”)

Tucker v. Texas, 326 U.S. 517 (decided January 7, 1946): companion case to the above, another Jehovah’s Witness, this time booted from a government-owned housing area (a clearer case of 1A/14A violation, if you ask me)

City of Escondido v. Emmons, 586 U.S. — (decided January 7, 2019): in this handcuffed-by-police §1983 claim, the Circuit Court’s brief statement that “excessive force” is “clearly established” was inadequate to support its conclusion that there was no qualified immunity; remanded for correct inquiry which is whether officer’s conduct violated clearly established statutory or Constitutional rights

Wright v. Van Patten, 552 U.S. 120 (decided January 7, 2008): right to counsel not violated when attorney appeared at plea hearing via speaker phone (which is actually more effective than personal appearance or Zoom, if your position is very weak: you don’t have to strain to keep a straight face, just make sure there’s no giggle in your voice)

Susquehanna Boom Co. v. West Branch Boom Co., 110 U.S. 57 (decided January 7, 1884): battle of the booms (to control timber floating downriver; they interfered with each other); federal court jurisdiction cannot be created by federal issue concocted after state court appellate process is exhausted (the belated argument was that Pennsylvania’s grant to the second boom company interfered with the contract of the first, in violation of art. I, §10)

[SRG2]

Another instance where Thomas's purported opposition to QI is revealed to be bullshit.

[F.D. Wolf]

That's a rather silly argument. The unanimous Court didn't even hear arguments in the case, granting cert and summarily reversing in the same opinion, stating the rather obvious proposition that merely saying "the law is clearly established" without any supporting argument is insufficient to show the law is in fact clearly established. This would hardly seem to be a particularly good time or place for a justice to insert an aside about his general feelings about QI.

[SRG2]

But Thomas has often indicated his distaste for arguments that the law is clearly established where he disagrees with the law.

My comment is not an argument by itself, though. It is just another example to demonstrate the general point that Thomas - and his fans - may claim that he is not a supporter of QI, but in practice he shows no interest in limiting it.

As QA noted, he often notes his position. Yet here, nope. And in the Texas case I linked to previously, he dissented without even providing an explanation.

[F.D. Wolf]

Thomas has repeatedly called for the Court to re-examine its QI jurisprudence. Ziglar v. Abbasi, 582 U.S. ___ (2017) (op. concurring in part); Baxter v. Bracey, 590 U.S. __ (2020) (dissenting from denial of cert); Hoggard v. Rhodes, 594 U. S. ____ (2021) (statement regarding denial of cert).

And in all those cases, he was a minority of one. I’m not even sure exactly what you’re asserting. He’s only pretending to be interested in QI reform? What possible motive would he have for doing so?

[F.D. Wolf]

I don't know that Tucker is so clear cut. For example, if a privately-owned apartment complex posted a sign that read, "Only residents and their guests are permitted on premises," that would seemingly not implicate any constitutional concerns. Should it matter if the government owns the apartment complex? It's close to saying that the privacy rights of those who live in government housing, who will tend to be poorer individuals, are not as important as the rights of those who live in private housing. (I'm really just being rhetorical, not necessarily expressing an opinion on the matter, which I have admittedly not given much consideration).

[Dan Schiavetta]

One's privacy rights often conflict with another's Equal Protection rights. At the time, privately owned facilities could still racially discriminate. This was before Heart of Atlanta and Katzenbach. Maybe that explains it.

[Michael P]

Marsh v. Alabama seems to be narrower than "private property" in general -- the "holding" of the Court focuses very much on the nature of the overall property as a privately-owned town, and the particular location as a sidewalk that is dedicated to general public use. Later cases (such as Lloyd Corp. v. Tanner, 407 U.S. 551 (1972)) distinguished that on the basis that the Lloyd Center shopping mall are not so open to the public; in Pruneyard Shopping Center, the court soon clarified that states could require shopping centers to allow activities like the one in Lloyd Corp.

[Dr. Ed 2]

Millinocket, Maine would be an interesting study.
A company town owned by the now-defunct Great Northern Paper Company (the mill was at the head of Main Street), people were able to purchase 99 year leases on houselots.

Actual ownership was questionable when the mill existed, and now...

[F.D. Wolf]

Despite taking the judicial oath on the same day, Justice Powell had seniority over Justice Rehnquist (as evidenced by their positions on the photo, with Powell on the far left of the back row, and Rehnquist on the far right of the back row.) Why was this so? According to the Court's official website:

On the rare occurrence that two Justices join the Court on the same day, seniority is determined by age. This occurred on January 7, 1972, when Lewis F. Powell, Jr., and William H. Rehnquist were sworn-in during a special sitting of the Court. Although Rehnquist had taken his Constitutional Oath prior to Powell, Chief Justice Burger administered the Judicial Oath to Powell (age 64) before Rehnquist (age 47).

https://www.supremecourt.gov/about/oath/supremecourtoathsfirstsandtrivia06-30-2022.pdf

That, however, is inaccurate. 28 U.S.C. sec. 4 provides:

Associate justices shall have precedence according to the seniority of their commissions. Justices whose commissions bear the same date shall have precedence according to seniority in age.

Powell had seniority because his commission was dated December 9, 1971, while Rehnquist's was dated December 15, 1971. This has been the law since the Judiciary Act of 1789, which created the original Supreme Court. Seniority matters mostly because the Chief Justice (who is always considered the most senior justice) selects who writes the Court's opinion, but when the Chief is not in the majority, the seniormost justice in the majority makes the selection.

[Dan Schiavetta]

Powell was more moderate than Rehnquist. I'm under the impression that in general right-wing Justices get onto the Court at a younger age than moderates or liberals.

[Rev. Arthur L. Kirkland]

Powell was a Federalist Society stalwart and a certified bigot.

A hero to the bigots who operate and adore this blog.

If anyone wishes to attempt to provide a persuasive argument that Powell was not a bigot, let's hear it.

[Dr. Ed 2]

No, Kirkland, YOU have the burden of proof.

I've never heard that he was a bigot. Convince me.

Hell, present at least a scintilla of evidence.....

[Rev. Arthur L. Kirkland]

Powell was a bigot with respect to Blacks and Powell was a bigot with respect to gays.

This lame website permits but two links, so far as I am aware.
It's about time for you to perform some of your own basic research, anyway.

If there is anyplace a right-wing bigot can find defenders -- or, if so inclined, frequent use of racial slurs in modern America -- it is the Volokh Conspiracy.

[Dr. Ed 2]

As to logging booms, the classic case is Lord v. Veazie...

Remnants of these booms still remain in places -- for example in Brunswick along the river adjacent to US Route 1 -- the small stone islands made of cut granite blocks were the offshore anchors of the booms and they corralled the logs of individual owners into the various corrals these booms created.

Back then, the sawmills dumped all the sawdust, bark, & scraps into the river to float away -- this is what killed off the Oysters.

[BrotherMovesOn]

"I find your belief system fascinating."

[Dan Schiavetta]

I got Dr Ed2 to read the case, and another one too. I count that as a victory.

[Dan Schiavetta]

Give them props for that much at least. Strange bedfellows are created. JW's are possibly the only conservative religious group which is racially integrated. In fact there are a lot of black JW's.

As for them being pests, my old girlfriend had a cure for that. When they ring the bell, answer the door naked.

[Dan Schiavetta]

This was also before Brown v. Board of Education, but I think by 1946 the Court already had in mind proscribing discrimination by governmental entities, as soon as the first proper case came along. Two years later the officially did so, in Sipuel v. Board of Regents of University of Oklahoma.

[Dr. Ed 2]

There are only two truly private colleges — Hillsdale & Grove City.

Everyone else is a recipient of Federal Funding and the issue of nondiscrimination law applying to them is really moot because of the regulations on those who receive Federal Funds. Any discrimination complaint would go through ED instead of the courts.

On second thought -- some of the aggrieved male students *are* suing for discrimination -- but that's something different from what I think you were asking about.

[Rev. Arthur L. Kirkland]

No kidding. I am beginning to doubt F.D. Wolf is a lawyer. Or, perhaps, a college graduate.

It is possible, though, that his resentment and disaffectedness have overwhelmed his education.

[Dan Schiavetta]

For years one reason white students went to private colleges was so that their "privacy rights" wouldn't be invaded by having to sit with black students.

[Dan Schiavetta]

Arthur, please return to your earlier, non-ad-hominem self.

[Dan Schiavetta]

True, but . . . When I was in law school he was the public face of the Federalist Society. These days, they wouldn’t even let him in the door.

[Mr. Bumble]

When was that?

[Dan Schiavetta]

No.

If nothing else, Mathews v Eldridge would disqualify him.

[Dan Schiavetta]

Pre-Reason, though that switch also brought in a lot of cesspool commenters from the right wing.

Or maybe it was pre-Washington Post.

He wasn’t “Rev”. then.

He does still have (very) occasional thoughtful comments, such as on the 20th anniversary of 9/11.

[Dr. Ed 2]

WEB DuBois graduated from Harvard in 1890.
There were a LOT of private colleges that explicitly did *not* discriminate, on religious grounds.

[Dr. Ed 2]

" When they ring the bell, answer the door naked."

They often bring their (young) children with them -- I'm not sure how the child abuse laws would rule on this, but I suspect the child abuse nazis would make her life rather difficult.

[Dr. Ed 2]

Look up why the Historically Black Land Grant colleges were created.

It wasn't just the privates who discriminated.

[Dr. Ed 2]

ED doesn't have authority over SNAP & WIC.

[David Nieporent]

Wait, what does Lewis Powell have to do with the Federalist Society? He's the wrong generation, and I can find nothing in a quick google to suggest any actual connection.

[Dan Schiavetta]

Maybe they’ve airbrushed him out of their history.

But when I was in law school (1989) every FSoc flyer had his photo on it.

[Rev. Arthur L. Kirkland]

Powell has been described as the father of the right-wing separatist movement (Heritage Foundation, Federalist Society, American Enterprise, ASSOL, Chamber of Commerce, and the rest of the clingerverse).

Justice Powell's disaffected manifesto was a foundational element of the losing side of the American culture war.

[Rev. Arthur L. Kirkland]

The days of thoughtful posts or comments at the Volokh Conspiracy are long gone.

Bigotry corrodes. Resentment shackles. And you can't reason with superstition, belligerent ignorance, or bigotry.

I expect this flaming clustermuck to worsen when UCLA improves and Prof. Volokh heads north, freed of the constraints associated with being employed by a mainstream, liberal-libertarian institution.

[David Nieporent]

Or maybe it was pre-Washington Post.

Remember that his fake origin story is that he was 'censored' [sic] by Prof. Volokh for being an asshat like 15 years ago, which is long before the blog arrived at the Washington Post.

[Rev. Arthur L. Kirkland]

I thought former Justice Powell's role as precipitate in formation of the clingerverse (Heritage, Federalist, Pacific Legal, Olin-Bradley-Coors-Scaife-etc.) was relatively well-known . . . although, as is common among clingers, Powell and his backers hid the memo as long as they could.

[Dan Schiavetta]

I don’t remember any children with them either.

[David Nieporent]

Me neither, but of course it's irrelevant because it would not be "child abuse" to answer one's front door naked regardless of whether a kid was there. That's just a Dr. Ed Special.

[Dan Schiavetta]

I don’t think he was muted or “censored” then. Volokh.com was a lively site with a wide variety of thoughtful commenters. Geokstr was the closest to anyone abusive, and by present standards he was pretty mild.