Today in Supreme Court History: March 21, 1989

3/21/1989: Texas v. Johnson is argued.

Comments

[Dan Schiavetta]

A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Massachusetts, 383 U.S. 413 (decided March 21, 1966): The book is more widely known as “Fanny Hill”, written in 1749, a hot property when I was a teenager, made into a movie which I saw years later and was a disappointment. Massachusetts brought a civil suit to have the book declared “obscene” under statute construed as anything not Constitutionally protected. Lower court did not apply the test of Roth, 1957 (no redeeming social value, catering only to prurient interest, etc.), so remanded. Meaning the trial judge would be forced to read the thing. Not sure how this turned out.

Manuel v. City of Joliet. Ill., 580 U.S. 357 (decided March 21, 2017): pretrial detention can be a separate unlawful “seizure” under Fourth Amendment (even though well after arrest) (defendant kept in jail even after testing showed seized pills contained no illegal substance)

Caetano v. Massachusetts, 577 U.S. 411 (decided March 21, 2016): Stun guns protected by Second Amendment even though not in existence when Bill of Rights adopted and no military use. Ouch!

San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (decided March 21, 1973): state’s system of financing of schools via property taxes (i.e., children in poor areas got worse education) was not subject for federal judicial review (poor people are not a protected class)

Missouri v. Frye, 566 U.S. 134 (decided March 21, 2012): ineffective assistance of counsel when defendant was not advised of plea offer before it expired

United States v. Grubbs, 547 U.S. 90 (decided March 21, 2006): upholding “anticipatory search warrants” (i.e., based on probable cause that at some future point illegal activity would be discovered) (here, possession of child pornography in package about to be delivered)

Kenyeres v. Ashcroft, 538 U.S. 1301 (decided March 21, 2003): denying stay of removal of Hungarian citizen wanted for embezzlement in his home country and who had overstayed his visa (Kenyeres stole $1.6 million from investors in Madoff-style scheme)

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (decided March 21, 2000): FDA overstepped when it tried to ban tobacco products; invaded field Congress had occupied via its legislation as to labeling and advertising

Adams Fruit Co. v. Barrett, 494 U.S. 638 (decided March 21, 1990): migrants injured in unsafe van on way to work could sue under Migrant and Seasonal Agricultural Worker Protection Act despite usual worker’s comp ban (IOW: the “dual capacity” doctrine, where employee can’t sue his employer even for non-employer acts, can be superseded by Congress)

Brower v. County of Inyo, 489 U.S. 593 (decided March 21, 1989): a roadblock can be an unreasonable “seizure” and therefore possibly in violation of Fourth Amendment (driving stolen car in high-speed chase, died when crashed into 18-wheeler placed by police; widow sued under §1983)

[Dilan Esper]

Meaning the trial judge would be forced to read the thing. Not sure how this turned out.

With a stain on his robe?

[Dan Schiavetta]

“Recently I came across a book . . .”

[ReaderY]

In Rodriguez, the Court in fact reviewed San Antonio’s scheme. Rational basis review is not no review.

[Dan Schiavetta]

Thanks. Will correct.

[not guilty]

The citation to Memoirs calls to mind an anecdote that I read in Bob Woodward and Scott Armstrong's The Brethren. I am working from memory here, so forgive me if I get a detail or two wrong.

Prior to Miller v. California, 413 U.S. 15 (1973), whether material was or was not obscene was a question of law. One day a week at SCOTUS was "movie day," where justices (other than Black and Douglas, who didn't accept the prevailing obscenity doctrine) would meet to view pornographic movies to determine whether a movie was obscene. (This reportedly included catcalls of "There it is, I know it when I see it.") When John Marshal Harlan's eyesight began to fail, he took a law clerk with him to describe the action onscreen.

In the wake of Miller, obscenity vel non became a question of fact to be determined by the jury.

[Dan Schiavetta]

I think that story (which is true) was reported before the Woodward/Armstrong book. Maybe it was in a column by Nat Hentoff.

I would not want to be Harlan's clerk.

Supposedly Thurgood Marshall laughed a lot, getting a big kick out of some of the movies. He also knew about a million dirty jokes.

[SMP0328]

Miller overruled Memoirs probably because the Court knew it wouldn't be long until a woman became a Justice. Imagine "movie day" with Sandra Day O'Connor.

[John F. Carr]

So Clarence Thomas is a worthy successor.

[Dan Schiavetta]

You have to know who to tell them to. Most guys figure this out early on.

[not guilty]

I recall speculation at the time of Clarence Toady's confirmation hearings that he had a penchant for animal films. IIRC he declined to answer questions about his viewing/movie rental habits.

[Dan Schiavetta]

His idea of being “lynched”. Oww, that “rope” really hurts!!

[The Margrave of Azilia]

"I would not want to be Harlan’s clerk."

Supreme Court clerks get to use their clerk service as leverage for top law jobs. If they have to get a bit of hazing to achieve this goal ("what is that lady doing, I can't see?"), then they probably would consider it a price worth paying.