Today in Supreme Court History: March 19, 1891

3/19/1891: Chief Justice Earl Warren's birthday.

Comments

[Dan Schiavetta]

Austin v. New Hampshire, 420 U.S. 656 (decided March 19, 1975): New Hampshire commuter tax applicable only to out-of-state residents (Maine) violated Privileges & Immunities clause even though Maine gave its residents credit for it

Snyder v. Louisiana, 552 U.S. 472 (decided March 19, 2008): rejecting prosecutor’s bogus reason for peremptory strike of black juror (nervous about effect of jury service on his college grades, but white jurors accepted despite more serious issues) (murder conviction and death sentence vacated and remanded for retrial)

Ohio v. Reiner, 532 U.S. 17 (decided March 19, 2001): contra Donald Trump (“if you’re innocent, why are you taking the Fifth?”), and also the Ohio Supreme Court, upholds Fifth Amendment immunity granted to babysitter in trial of father for shaken-baby murder despite her claim of innocence (defense theory was that she was the true perpetrator and “it was reasonable for her to fear that answers to possible questions might tend to incriminate her”)

Meghrig v. KFC Western, Inc., 516 U.S. 479 (decided March 19, 1996): Resource Conservation and Recovery Act does not provide private cause of action to recover cleanup costs where waste was not present danger to health or safety (statutory phrase is “may present imminent and substantial danger”) (city had ordered KFC to clean up underground petroleum it found when digging up prior gas station; KFC tried to sue gas station owner)

Wayte v. United States, 470 U.S. 598 (decided March 19, 1984): “passive enforcement” of selective service registration law (i.e., prosecuting only those who admitted violation) did not violate First Amendment freedom of speech (defendant, like me, had been ordered to register for the draft in 1980, but unlike me, wrote a letter refusing)

Anderson v. City of Bessemer City, N.C., 470 U.S. 564 (decided March 19, 1985): applies “clearly erroneous” standard to trial court’s finding that plaintiff was denied city recreation director job due to her sex; upholds verdict in her favor (can credit just one witness above all others so long as testimony is plausible)

United States v. Gillock, 445 U.S. 360 (decided March 19, 1980): Speech or Debate privilege (art. I, §6, cl. 1) does not protect state legislators or state legislatures (here, state legislator prosecuted under RICO)

Lascaris v. Shirley, 420 U.S. 730 (decided March 19, 1975): striking New York law which added extra conditions to federal AFDC benefits (requiring that parent assist in compelling other parent to provide support)

United States v. General Dynamics Corp., 415 U.S. 486 (decided March 19, 1974): yes, deep shaft coal mining business which acquired strip-mining business would concentrate the coal business, but other factors would do that too; judgment for defendant affirmed; 5 - 4 decision, dissent by Douglas, https://www.youtube.com/watch?v=Q6Vgs66kRAo

Burns v. Fortson, 410 U.S. 686 (decided March 19, 1973): approves (just barely) Georgia’s 50 day pre-election deadline for registering to vote (except for President and Vice-President), time is necessary to ensure accuracy of voter lists

[SRG2]

Snyder wins 7-2. No guesses needed for who dissented.

I have a very hard time believing that Thomas never thinks to himself, that this or that case gives him another opportunity to show that he's really "one of us".

[Bob from Ohio]

I thought you said Alito always was eager to kill murderers? He was one of the 7 here.

[SRG2]

He is generally so, yes. But sometimes even he can see that a trial itself wasn't fair. But wait until the next police search case comes along.

[Dan Schiavetta]

Yesterday's comments were posted individually because it turns out my summary of Burns v. Alcala (1975) wouldn't post for some reason. In that case the Court held that AFDC was not required to provide benefits to unborn children because “dependent child” under statute obviously meant an individual already born. I also noted that the case might have been overruled by Dobbs,

[Magister]

Looks like a summary of that case was acceptable a year ago.
https://reason.com/volokh/2023/03/18/today-in-supreme-court-history-march-18-2008-3/?comments=true#comment-9974722

[Dan Schiavetta]

And I didn't change it. Strange!

[Bob from Ohio]

Allen Snyder was convicted again. I guess the first jury was not so biased.

[SRG2]

Even the guilty are entitled to a fair trial.

[The Margrave of Azilia]

It's probably a good idea to get rid of peremptory challenges, since (a) it could lead to a hearing just like regular challenges, and (b) lawyers use it for racial and religious discrimination.

Check out this Clarence Darrow speech (it’s at a university Web site, but it said not secure, so I won’t link it – you can look it up if you dare):

“An Irishman is called into the box for examination. There is no reason for asking about his religion; he is Irish; that is enough. We may not agree with his religion, but it matters not, his feelings go deeper than any religion. You should be aware that he is emotional, kindly and sympathetic. If he is chosen as a juror, his imagination will place him in the dock; really, he is trying himself. You would be guilty of malpractice if you got rid of him, except for the strongest reasons.

“An Englishman is not so good as an Irishman, but still, he has come through a long tradition of individual rights, and is not afraid to stand alone; in fact, he is never sure that he is right unless the great majority is against him. The German is not so keen about individual rights except where they concern his own way of life; liberty is not a theory, it is a way of living. Still, he wants to do what is right, and he is not afraid. He has not been among us long, his ways are fixed by his race, his habits are still in the making. We need inquire no further. If he is a Catholic, then he loves music and art; he must be emotional, and will want to help you; give him a chance.

“If a Presbyterian enters the jury box and carefully rolls up his umbrella, and calmly and critically sits down, let him go. He is cold as the grave; he knows right from wrong, although he seldom finds anything right. He believes in John Calvin and eternal punishment. Get rid of him with the fewest possible words before he contaminates the others; unless you and your clients are Presbyterians you probably are a bad lot, and even though you may be a Presbyterian, your client most likely is guilty.

“If possible, the Baptists are more hopeless than the Presbyterians. They, too, are apt to think that the real home of all outsiders is Sheol, and you do not want them on the jury, and the sooner they leave the better. The Methodists are worth considering; they are nearer the soil. Their religious emotions can be transmuted into love and charity. They are not half bad; even though they will not take a drink, they really do not need it so much as some of their competitors for the seat next to the throne. If chance sets you down between a Methodist and a Baptist, you will move toward the Methodist to keep warm.

“Beware of the Lutherans, especially the Scandinavians; they are almost always sure to convict. Either a Lutheran or Scandinavian is unsafe, but if both in one, plead your client guilty and go down the docket. He learns about sinning and punishing from the preacher, and dares not doubt. A person who disobeys must be sent to hell; he has God’s word for that.”

[Dan Schiavetta]

Thanks for this.

It took a long time for me to accept that brown and black jurors are more plaintiff-friendly. It’s simply a fact that verdicts in less-white counties are larger and defense verdicts less common.

The problem was that the older attorneys I got “trained” by were so obviously prejudiced themselves. And they had prejudices that went beyond race, like Darrow did. Trying to separate myself from them only marked me as naive, or snooty, denying what “everyone knows”. They saw themselves as worldly (though their life experiences were narrower than mine). I do CLE’s where I discuss how to deal with this complicated situation.

There are prejudices that can be properly catered to. One attorney told me that in summations in front of a white jury in a Republican part of the state he cited President Reagan (in defense of a client who was hands-off but “knew how to delegate”) and in front of a nonwhite jury in a Democratic part of the state he used Reagan differently, in a case against someone who had been negligent and inattentive.

As a straight, white Italian-American male from a conservative part of the state I was a target of winks and nudges from racists. It set me back professionally (at least for a while) but my strategy was to always put a photo of myself with my black girlfriend in my office in a prominent place, and along with other family photos the photo where I gave away a black girl (daughter of a friend of mine) at her wedding (her biological father having left the scene). I got the sense the younger, multiracial people in the office (chiefly staff) saw this as virtue signaling but if that’s what it took to keep away the racists, it was a price I was willing to pay.

[The Margrave of Azilia]

“One attorney told me that in summations in front of a white jury in a Republican part of the state he cited President Reagan (in defense of a client who was hands-off but “knew how to delegate”) and in front of a nonwhite jury in a Democratic part of the state he used Reagan differently, in a case against someone who had been negligent and inattentive.”

I’m not denying that’s true, but it sounds like a lawyer joke. A *good* joke.

[Dan Schiavetta]

It doesn’t seem like a joke to me, but maybe that’s because I’m a trial lawyer and have used (and heard used) some inventive strategies used to woo the jury.

I was once about to try a case involving a defendant named Alex Rodriguez, who tried to prevent an accident by noticing that the co-defendant had left his car in gear, and jumped in to put on the brakes — unsuccessfully (the car ran into plaintiff). This was in New York. The Yankees had a player named Alex Rodriguez — “A-Rod” — who was well-known for not delivering in the clutch. I had a beaut of a crack to make in my closing statement. “Unlike the baseball A-Rod, this A-Rod, in a clutch situation, actually did something!” It would have gotten a big laugh from the jury and probably the judge and even my adversary.

[The Margrave of Azilia]

"It doesn’t seem like a joke to me"

It sounds like a Jewish joke I heard.

A Jewish mother is talking about her children. Talking about her son, she says, "his wife is horrible, not working, staying at home, and having my son cater to her every whim." Talking about her daughter, she says, "she has a wonderful husband, taking care of her and supporting her so she doesn't have to work!"

(The joke isn't that the son and daughter are man and wife - that's another stereotype - but that the daughter and daugher-in-law are in the same situation but the mother assesses each situation differently.)

[Dan Schiavetta]

Perhaps that joke was going through the mind of my lawyer friend, if only subconsciously, when he composed his closings.

[The Margrave of Azilia]

I'll note that Earl Warren, today's birthday boy, wasn't Lutheran, but he *was* Scandinavian. Making him "unsafe" according to Darrow.