Today in Supreme Court History: January 19, 1990

1/19/1990: Justice Arthur Goldberg dies.

Justice Arthur Goldberg

Comments

[Dan Schiavetta]

Patsone v. Pennsylvania, 232 U.S. 138 (decided January 19, 1914): upholds statute prohibiting foreign born non-citizens from killing wild game except in defense of person or property (this case has never been overruled)

NASA v. Nelson, 562 U.S. 134 (decided January 19, 2011): upholding NASA regulation requiring even long-term employees to submit to background checks and answer questions about illegal drug use (“if there is a right to private information, it is not violated here”)

United States v. Mueller, 113 U.S. 153 (decided January 19, 1885): builder of new customs house in Chicago entitled to delay costs incurred due to government dithering as to building design

Oyama v. California, 332 U.S. 633 (decided January 19, 1948): leaves in place California statute which in effect prohibited those of Japanese ancestry from owning land, with the result that a father’s gift to his son was invalidated and the land went to the state (majority opinion relies on father’s failure to make some formal filings, but c’mon . . .) (statute was later struck down by the California Supreme Court, Sei Fujii v. State, 1952)

Presley v. Georgia, 558 U.S. 209 (decided January 19, 2010): Sixth Amendment right to public trial includes access to voir dire of prospective jurors

[F.D. Wolf]

Patsone was an interesting case, if short on analysis. It was an 8-1 decision, with Justice Holmes writing the majority opinion, and Chief Justice White dissenting without opinion.

The statute in question prohibited aliens from hunting wild game, and "to that end" prohibited them from possessing rifles or shotguns. (The Court noted the law did not prevent possession of pistols that may be "needed occasionally for self-defense", suggesting the result may have been different if it had.) The penalty was a $25 fine and forfeiture of the firearms. Patsone, an Italian citizen, was convicted of possessing a shotgun, fined $25, and had his shotgun confiscated.

Patsone argued that the law vioalted the Due Process and Equal Protection Clauses of the Fourteenth Amendment as well as provisions of the 1871 Treaty of Commerce and Navigation between the United States and Italy, namely provisions granting citizens of one country, while in the other, the same rights as natives in the areas of "anything incident or necessary to trade" and "protection and security of body and property."

The Court upheld the statute, applying what we could probably call today "rational basis" scrutiny. As you note, the case has never been explicitly overruled, but has been undermined and called into question. In Graham v. Richardson (1971), the Court struck down a statute limiting welfare benefits to citizens, specifically listing Patsone as a case whose Fourteenth Amendment analysis was in "doubt".

[Dan Schiavetta]

Thanks.

It's an unfair law, of course. I suppose the case has never been overruled because the law's not enforced any more, and there hasn't been any conviction to appeal.

[The Margrave of Azilia]

"the 1871 Treaty of Commerce and Navigation between the United States and Italy, namely provisions granting citizens of one country, while in the other, the same rights as natives in the area[] of...“protection and security of body and property.”"

That sounds like a slam-dunk for the Italian guy's case. What did I miss?

[Dan Schiavetta]

That promise, I think, is honored by the statute's exception for defense of person or property.

[The Margrave of Azilia]

But it doesn't seem to provide the *same* right for Italians and Americans.

[The Margrave of Azilia]

Oh, I see, I guess:

"There remains, then, only Article 3. With regard to that, it was pointed out below that the equality of rights that it assures is equality only in respect of protection and security for persons and property. The prohibition of a particular kind of destruction and of acquiring property in instruments intended for that purpose establishes no inequality in either respect. It is to be remembered that the subject of this whole discussion is wild game, which the state may preserve for its own citizens if it pleases....We see nothing in the treaty that purports or attempts to cut off the exercise of their powers over the matter by the states to the full extent."

So because you can prohibit Italians from hunting game, you're entitled to limit their right to self-defense below the level enjoyed by U. S. citizens...the state only needs pure motives!

[ducksalad]

Is Presley v Geogia one of those that's ignored in practice?

Every time I've been called for jury duty, we had to show our summons to get into the room.

And more generally, each room in the courthouse has a "COVID" room capacity (yes, still posted now, even in Texas) that is a small fraction of the "fire marshal" capacity. They can decide that jurors are essential, and use the fire marshal capacity for them, while observers are not, and use the COVID capacity for them.

[F.D. Wolf]

I don't think so. I observed many voir dires, mostly when just killing time in the courthouse, and no judge ever asked me to leave. I think in most instances, the defense attorney doesn't much care whether there are observers or not. But in this case, the judge instructed the defendant's uncle to leave the courtroom. The defense objected. (Had the defense not objected, the argument would have been waived). Again, I doubt whether the defense attorney really cared whether the uncle could observe the voir dire, but, hey, might as well get one more ground for appeal. (And it worked).

[John F. Carr]

I was in a jury pool in Massachusetts Superior Court, pre-COVID, and there was no barrier to entry by the general public. Questions asked of the entire pool could be heard by visitors, if any. Questioning of individual jurors took place at the front of the courtroom in voices too low for me to hear.

[ducksalad]

FD, John - good to know there are places where SC constitutional interpretations are taken seriously, even if it's only to protect themselves against appeals.

[Dan Schiavetta]

My memory is vague, but IIRC the one time I was called for jury duty, it was an open courtroom. It was a big room and it was packed.

We were living in the Bronx at the time. I walked to the courthouse on 161st Street, about a mile and a half from our apartment in Soundview, and was wearing shorts (I was younger then!). Though the reason I didn't get picked was probably because I was a lawyer.

I could tell the attorneys right away because the assistant D.A. looked like a Jehovah's Witness and the defense attorney looked like a gangster.

This was for a criminal trial, of course. The 6A doesn't apply to civil trials. Most of the jury selecting I've done has been in small, subterranean rooms (in New York there's no judge overseeing it, just the lawyers).

[F.D. Wolf]

If there is no judge overseeing the voir dire, how do you challenge a juror or object to an improper question from opposing counsel?

[SRG2]

Good question. In the case I was summoned for, there was good faith on both sides and there seemed to be no limit on challenges.

I was excused.

[nystateofmind]

Some judges will have their Law Secretary or other court personnel present and you will indicate an objection and you will either sidebar with the Law Secretary to see if the Judge is needed or if it is other court personnel they will get the Law Secretary. As far as challenge to a juror, individual jurors are presented by number to the attorneys and after voir dire when you are in the back they will ask if anyone has an objection to Jurors 1 through X (X being the total number of jurors being seated). If anyone has an objection they will handle each in turn. If the only objection was to Juror 4 then they will go down the list of the remaining jurors in number order until there is one who nobody has an objection to and then person replaces Juror 4. I had one case where it was not an improper question, but a potential juror said something that I could have struck the entire pool in the Courtroom for. Seeing as nobody reacted to the statement by the potential juror, I kept silent until after voir dire. I objected to that juror "for cause" (as procedure limited number of peremptory challenges) and the other attorney tried to object and make it count as a peremptory. The Judge's Law Secretary turned to the attorney and said "Attorney Y, I was present and know exactly what [he] is objecting to, you do not want me to get [insert Judge's first name]." Needless to say, I probably got one or two extra "for cause" than I should have that jury selection after that.

[Dan Schiavetta]

F.D.:

There’s a judicial hearing officer at the main desk. If there’s a dispute over whether a venireperson (can't call him a "juror" because he's not a juror yet) should be struck for cause, you go out into the hall with the other attorney and argue it out in front of him. Sometimes the venireperson is asked along and the JHO asks him/her questions before making a ruling.

All this is off the record.

[Dilan Esper]

I wonder if facial recognition software might cause a reconsideration of Presley. Just wait until the first time that members of the media use facial recognition to identify and publicize jurors' identity in a high profile case.

[Dan Schiavetta]

It wouldn’t be members of the media, it would be the Trump campaign, followed by doxxing and harassment. The judge in the (second) E. Jean Carroll trial agreed with plaintiff's counsel that the jurors' identities would be kept secret to avoid harassment by Trump's supporters or Trump himself.

[F.D. Wolf]

That an unhinged Trump-hating judge "agreed" to something hardly makes it proper. Trump has been involved in dozens of trials during this campaign of unremitting lawfare, yet none of those other juries was anonymous.

Anonymous juries, even in criminal trials, have been very much the exception, not the rule, in American history (though this changing). In the treason trial of Aaron Burr, Chief Justice Marshall put the jurors' names in the case report. The first fully anonymous jury was not seated in this country until 1977, in the case of notorious drug dealer Leroy "Nicky" Barnes. United States v. Barnes, 604 F.2d 121 (2d Cir. 1979) (2-1 decision) (upholding anonymous jury).

Even in criminal trials, courts say anonymous juries are a "last resort" and should only be used in exceptional circumstances. The danger is obvious. It risks the guarantee of an "impartial jury". In the Trump case, it denied his attorneys the ability to investigate jurors, particularly their social media. It will almost certainly result in a reversal, unless Trump waived the argument, and I have seen varying reports on that.

[Dan Schiavetta]

It was unprecedented for a defendant to do what Trump had done — insult and harass a judge and his clerk. Let me remind you that his many followers are rabid and (proudly) armed.

[Dilan Esper]

It might be Trump, but it also might be the media. I remember the OJ Simpson case-- the media would have absolutely done everything it could to get ahold of juror identities in that case.

[John F. Carr]

There is only one Trump and he can't have too many state court jury trials with photography allowed. There are a lot of gangs willing to resort to violence to make a criminal case go away. In 1995 a gang member killed a gang crime prosecutor in Boston.

[not guilty]

Justice Goldberg resigned from SCOTUS to become Ambassador to the United Nations. An odd choice, I think. Lyndon Johnson no doubt wanted to make room for nominating his longtime crony Abe Fortas, whom Johnson later sought unsuccessfully to elevate to Chief Justice.

[Hugh]

It's a shame that Goldberg's 9th amendment concurrence didn't carry the day in the Griswold decision. It makes a lot more sense than "emanations of penumbras."