Today in Supreme Court History: March 1, 1880

3/1/1880: Strauder v. West Virginia decided.

 

Comments

[Dan Schiavetta]

Note: Josh didn’t do a post for February 29. In honor of my wife’s birthday, which is that day, I did summaries of every case decided on February 29, 1892, twenty-five in all. They’re in yesterday’s Open Thread.

Strauder v. West Virginia, 100 U.S. 303 (decided March 1, 1880): Fourteenth Amendment violated by state statute restricting jury duty to whites; the Court’s dictum as to some restrictions being permissible was overruled by Taylor v. Louisiana, 1975, insofar as restricting it to males

Swint v. Chambers Co. Comm’n, 514 U.S. 35 (decided March 1, 1995): the Court once again takes on the persistent issue of discretionary “pendent appellate jurisdiction”, i.e., appealing a normally non-appealable order along with an appealable one; here, in a §1983 suit against police officers and county arising from a narcotics raid on a nightclub, it holds that officers’ appeal from order denying them qualified immunity (automatically appealable despite not being a final judgment) does not bring along with it county’s appeal from order denying summary judgment; claim against county involved different issues (e.g., formation of policy), and the Circuit Court had no discretion to hear it (cf. National Fire Ins. v. Bartolazo, 27 F.3d 518, where in an insurance coverage dispute court heard appeal of denial of plaintiff’s summary judgment motion — nonfinal order — along with appeal of granting of defendant’s, because the issues and evidence were the same and the lower court’s decision disposed of the case anyway)

Marks v. United States, 430 U.S. 188 (decided March 1, 1977): new definition of impermissible “obscenity” announced in Miller v. California, 1973, did not apply to pending prosecutions (Court also makes the useful point that when it issues a plurality decision, its “holding” for precedential purposes will be the opinion of the judge(s) who concurred on the narrowest ground)

Freedman v. Maryland, 380 U.S. 51 (decided March 1, 1965): another obscenity case: can’t show a banned movie until you get a judge to overrule the censor’s order (though conviction vacated anyway because state statute didn’t provide for prompt judicial review)

Roper v. Simmons, 543 U.S. 551 (decided March 1, 2005): Eighth Amendment prohibits executing those under 18 when crime committed (overruling Stanford v. Kentucky, 1989)

FTC v. Sperry and Hutchinson Co., 405 U.S. 233 (decided March 1, 1972): Remember S&H green stamps? I do, though my mother never spent time pasting stamps into those redeemable booklets (she was too busy raising six kids). The FTC ordered S&H to cease a marketing scheme that supposedly unfairly inhibited competition. Court holds that though the FTC can enjoin practices that violate neither the letter nor the spirit of anticompetition statutes, in this case its order made no findings and gave no reasons. (From the opinion we learn that since 1896 S&H had issued more than a trillion stamps.)

The Mary Ann, 21 U.S. 380 (decided March 1, 1823): captain of slave ship screwed up the paperwork (slaves have to be listed in duplicate!) but Marshall vacates forfeiture because the indictment was also was screwed up for lack of specifics; sends it back for correction

Lockhart v. United States, 577 U.S. 347 (decided March 1, 2016): child pornography statute increasing sentence if prior “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward” (emphasis added) applied to prior conviction of abuse of adult

FCC v. AT&T, Inc., 562 U.S. 397 (decided March 1, 2011): corporations don’t have “personal privacy” rights so as to resist FOIA requests (FCC had granted FOIA request for records AT&T had provided to law enforcement in investigation of overcharging government) though they do have the “trade secrets” privilege

Arizona v. Evans, 514 U.S. 1 (decided March 1, 1995): marijuana seized as result of arrest warrant that had already been quashed held admissible; “good faith” exception to exclusionary rule because due to clerical error police hadn’t been told of the quash (the warrant, issued by a town judge because defendant hadn’t shown for a hearing as to traffic violations, was quashed by another judge when he did show several days later, apparently by clerk notating in ledger without telling defendant)

[SRG2]

A very meaty selection today!

1. Justice Strong's opinion in Strouder is very elegantly written, IMO - though hence it might come off as old-fashioned. As far as I can make out from looking at his referenced case, Field dissented because the jury didn't consist of people who weren't qualified.
https://supreme.justia.com/cases/federal/us/100/303/

2. Roper v. Simmons - Scalia really didn't like evolving standards of anything, so "cruel and unusual" was what was understood at time of the BoR. As I've noted before, he didn't argue thus when it comes fo arms under 2A. FWIW I think it's a morally shameful dissent independent of Scalia's specific observation.

[Krayt]

I'm fine with evolving standards that increase freedom of people. This is in keeping with the concept of rights inherent in you, and reserved by the people, and not granted to you by anyone.

I am not fine with evolving standards giving the government new powers sans amendment. This is in opposition to the concept government should only have powers The People expressly grant it, to stop the power hungry from expanding their power at their whim.

[Purple Martin]

A useful, elegantly written double negative, SRG2! (Not snark at all—I like double-take nature of it.)

[SRG2]

Thank you!

[SRG2]

Kagan is utterly right and the majority utterly wrong in Lockhart. I suspect that the majority were simply in favour of the longer sentence. There is no doubt that the statute was badly drafted, but Kagan's analysis is IMO irrefutable

https://casetext.com/case/lockhart-v-united-states-12

[Dan Schiavetta]

Thanks. I should have mentioned her dissent.

[Krayt]

to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward

So the third item is the only one that applies to minors.

These are the people who brought you marijuana residue on walls was not evidence of past use, but was posession in and of itself.

[SRG2]

Re: Arizona v. Evans - can anyone point to the good faith exemption clause in the Constitution? I must have missed it.

[Dan Schiavetta]

The exclusionary rule was a judge-made rule designed to curb law enforcement overreach. This concern would not apply if the police were enforcing what they reasonably thought was a valid warrant. At least that’s how I read it.

[SRG2]

But the exclusionary rule is a logical extension of 4A. The good faith exception isn't - and if anything runs counter to the intent of 4A.

[Bob from Ohio]

"exclusionary rule is a logical extension"

Not very logical, just pro-criminal

"criminal is to go free because the constable has blundered" Benjamin Cardozo

[Dan Schiavetta]

That was Holmes

I think — I might be wrong

[Frank Drackman]

You're thinking about the comment he said about you, something about three generations of Imbeciles

[Noscitur a sociis]

You are wrong.

In explaining the current state of the federal exclusionary rule, Cardozo wrote

fThe procedural condition of a preliminary motion has been substantially abandoned, or, if now enforced at all, is an exceptional requirement. There has been no blinking the consequences. The criminal is to go free because the constable has blundered.

People v. Defore, 150 N.E. 585, 588 (N.Y. 1926).

[The Margrave of Azilia]

Often, there would be no real case but for the constable’s “blunder.”

“Oopsie, I guess I just obtained enough evidence to allow this prosecution to go forward. I hate it when I make mistakes like that!”

[SRG2]

Almost all Constitutionally-recognised protections for the People will also benefit criminals. That is the nature of liberty. Evidently you disapprove of liberty. Of course, you might be one of those people who thinks that "criminal" is an identifiable class of which you're not a member and so "it will never happen to you", as though the innocent never get caught up in the justice system.

[Noscitur a sociis]

The innocent are pretty much categorically excluded from benefitting from the exclusionary rule.

[SRG2]

No they're not.

The exclusionary rule acts not only to prevent the use of evidence found in an unlawful search, but to deter the government from conducting unlawful searches in general. If the police know that a fishing expedition won't work, they will be reluctant to conduct them. And as we know the police aren't perfect judges of who is innocent.

[David Nieporent]

But the exclusionary rule is a logical extension of 4A. The good faith exception isn’t – and if anything runs counter to the intent of 4A.

The good faith exception is a logical extension of the exclusionary rule as much as the exclusionary rule is a logical extension of 4A. The purpose of the exclusionary rule is to deter unlawful searches. If the police, in good faith, believed their search was lawful, then what are you deterring?

[Dan Schiavetta]

I agree.

The only other way to give effect to the 4A is allowing a civil suit for damages. As a stand-alone remedy (such has been argued by some) that is laughably inadequate.

[SRG2]

My thinking is that the Constitution here is protecting The People from unreasonable searches - and the exclusionary rule prevents the government from benefiting from said unreasonable searches. Such a benefit would run counter to the general idea of 4A. On the other hand, the good faith rule provides a benefit to the government and lessens the protection for citizens, who after all do not care whether an unreasonable search was carried out willfully or in good faith.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

More logical than excluding the evidence would be charging the cop with the crime of illegally obtaining it -- theft, trespass, perjury.

[Brett Bellmore]

Yes, and the exclusionary rule came about because prosecutorial discretion had made that logical approach a joke.

But that IS how it was expected to work, and often did work in the early US: In fact, if an officer of the law broke into you house without a warrant, he was subject to being shot as a burglar. Presenting the warrant was how he proved to you his right to enter.

[Rubbish!]

Stauder, a black man, beat his also black wife to death with an axe handle after arguing with her about alleged infidelity. Maybe she sassed him one too many times, but however it started, he ended the argument with a double thwack. During the protracted litigation, he was found guilty and sentenced to death twice, but ultimately was released after spending nine years in jail. What a country!

[Frank Drackman]

Hopefully he was smarter than OJ and didn't go to prison later for stealing his own stuff.

[Rev. Arthur L. Kirkland]

Does anyone know the screen name Brandon Fellows uses at the Volokh Conspiracy?

"Used" might be more appropriate -- Fellows may be unable to post here for roughly three and one-half years.

Thank you.

[Rubbish!]

Let's Go Brandon! Dude smoked a joint in a senator's office, was contemptuous of the federal judge, and refused to bend the knee. I think it was the yarn beard that really set the feds off. Mocking bearded leftists is verboten.

He should have ass-fucked his buddy in the Senate chamber. That'll get you no charges since people get fucked there every day.

[Estragon]

“He should have ass-fucked his buddy in the Senate chamber”

Instead he fucked himself! You people truly get the heroes you deserve.

[Rubbish!]

So says Estrogen the bearded leftist. You and Artie are the ones obsessed with these people. Without them you'd live empty lives.

[Rev. Arthur L. Kirkland]

Without them -- after they are replaced and their obsolete, bigoted conservative ideas stomped into irrelevance -- we will lead better lives.

Winning the culture war has enjoyable consequences.

This Flowers dumbass has had plenty of time to ponder that point in a jail cell, where he has belonged.

[Frank Drackman]

If he's really unlucky he'll be in yours.

[Frank Drackman]

No, but I've heard Jerry Sandusky calls himself the Rev. Arthur L. Kirkland

Frank

[The Margrave of Azilia]

To elaborate a bit on the Freedman v. Maryland case.

Even after putting movies into the scope of the 1st Amendment (early 1950s), the Supreme Court said that there were cases in which prior censorship of movies would be allowed, unlike newspapers and other traditional parts of the press. Times Film Corp. v. City of Chicago, 365 U. S. 43 (1961).

But the Freedman decision said that prior censorship of movies had to meet strict standards in order to be constitutional. The movie's release could only be postponed for a brief time to allow a prompt judicial (not administrative) hearing - only said prompt judicial hearing could ban the movie, otherwise the movie had to be shown (subject to subsequent prosecution if it was illegal).

[Dan Schiavetta]

Thanks!

[Dr. Ed 2]

What you fail to understand is that the censorship made watching the films more fun.

[SRG2]

An amusing instance of film (non-)censorship in Britain - I might have mentioned this a while ago. While there is a committee that rates films, local councils in Britain are (or at any rate, were_ allowed to make their own decision - so it was possible for a film to be banned in borough X but allowed in the adjacent borough Y.

When David Cronenberg's film Crash was released, the council of the Royal Borough of Kensington and Chelsea (where I was living) were not sure whether they wanted the film to be shown there - its being a very Tory borough. However, for the film to be banned there, the relevant sub-committee had to watch it first. But it was felt that the film would be too "strong" for the delicate sensibilities of the chairwoman - so to save her heart, they decided not to ban it after all.

(I know about this as a good friend and quondam business partner was on the council.)

[Bob from Ohio]

"The State concedes that the picture does not violate the statutory standards and would have received a license if properly submitted,"

Not sure why we should care the theater owner wanted publicity for ticket sales for a non-obscene film.

We would all be better off if truly obscene films were banned. The Warren Court did worse things but increasing the coarseness of society is pretty bad.

[Dan Schiavetta]

I don’t think that was what was going on in the minds of the censors when they decided to ban them.

[Dan Schiavetta]

“This film is too shocking to censor.”

[Noscitur a sociis]

The party of freedom, folks!

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

And who do you nominate to define "obscene"?

No thanks, slaver. Fuck off.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Says supporter of Biden.

[Bob from Ohio]

Trump is a symptom of this, yes.

You vote for Bill Clinton?

[Dan Schiavetta]

The coarseness of the Clinton years was not caused by him but by his political opponents. Brett Kavanaugh deserves a lot of the blame .

[Krayt]

Need a pre-censor board to ok it for the censor board. But that board could be too shocked as well, and so needs its own pre-censors.

I once had a goofy thought of a world with out of control lawsuits, so companies hired people with big pads to follow you when you visited, to throw down the pad if you stumbled. But then they needed pad followers to protect them, who in turn needed their own pad-carrying protectors, and so on.

[Bob from Ohio]

Brett Kavanaugh got blow jobs in the Oval Office?

[Dan Schiavetta]

No one would have heard about it if it weren’t for Linda Tripp and Kavanaugh.

Clinton and Lewinsky are hardly the only people who have done improper things in private.

[Frank Drackman]

Well Duh, let's see there was Barney Fag and his boytoy, Larry Greg playing Footsie in the MSP men's room, John Edwards running for POTUS and away from his terminally ill wife, SC Governor Sanford and his South American Senora, Creepy NY Governors Homo and Spitz-her, oh, and Ted Kennedy, who left a young woman to asphyxiate (NOT drowned, there's a difference)

Frank