Today in Supreme Court History: April 16, 1962

4/16/1962: Justice Byron White takes oath.

Justice Byron White

Comments

[Moderation4ever]

In Supreme Court News, Justice Clarence Thomas was missing Monday with an unexcused absence. Reminds me of SOD Lloyd Austin's recent absence.

[David Nieporent]

I think you meant unexplained, not unexcused. Pretty sure he doesn’t need an excuse and there’s nobody who has the power to excuse him.

[Moderation4ever]

It was a joke. I sure the Justices don't have to submit an excuse.

I would not wish Justice Thomas any illness or health problem. It is interesting that there has been such a focus on Justice Sotomayer and about her health. But here we have Justice Thomas out for an unexplained reason.

[Dan Schiavetta]

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (decided April 16, 2002): striking down on First Amendment and overbreadth grounds Child Pornography Prevention Act of 1996 banning virtual pornography (despite fact that it’s difficult for law enforcement to discern virtual from real children) because it extends beyond “obscenity” (which is bannable) and limits free speech

Allen v. McVeigh, 107 U.S. 433 (decided April 16, 1883): no federal question presented by dispute over promissory note where promisor, resident in Alexandria, Virginia, had fled to Confederate territory to join his family after Union troops overran Alexandria and left his “notice of protest” there (probably because it wasn’t an international or even interstate issue -- the “Confederacy” was not recognized as a nation and it was the individual states who were at most “in rebellion” -- at least that’s my reading of this)

Genesis Healthcare v. Symczyk, 569 U.S. 66 (decided April 16, 2013): offer of judgment under Rule 68 does not make a case moot if the plaintiff rejects it (seems pretty obvious but this was a “collective” action under the Fair Labor Standards Act and with her accepting the offer there would be no plaintiffs left) (the offer was for full restitution); 5 - 4 decision

Burgess v. United States, 553 U.S. 124 (decided April 16, 2008): state penal offense punishable by more than one year is “felony drug offense” so as to invoke aggravated penalties of Controlled Substances Act even though state statute calls it a misdemeanor

Baze v. Rees, 553 U.S. 35 (decided April 16, 2008): three-drug lethal injection method was not “cruel and unusual punishment” despite increased risk of improper administration causing pain

Cooper v. Oklahoma, 517 U.S. 348 (decided April 16, 1996): state statute requiring that incompetence to stand trial be proved by clear and convincing evidence violates due process; preponderance of evidence is enough

Kay v. Ehrler, 499 U.S. 432 (decided April 16, 1991): successful pro se plaintiff in §1983 action who happens to be a lawyer is not entitled to attorney’s fees (what a jerk)

Kerr-McGee Corp. v. Navajo Tribe of Indians, 471 U.S. 195 (decided April 16, 1985): tribe can impose taxes on sale and lease of lands without approval of Secretary of the Interior

Rawlins v. Georgia, 201 U.S. 638 (decided April 16, 1906): due process not violated by statute excluding lawyers, ministers, doctors, dentists, and railway engineers and firemen from grand and trial juries (I imagine this statute is no longer in force -- but what was the impetus for it?)

Super Tire Engineering Co. v. McCorkle, 416 U.S. 115 (decided April 16, 1974): contention that state law making striking workers eligible for welfare interfered with right to bargain was still justiciable due to continuing existence of law despite settlement of strike; remanded to Third Circuit (which upheld the statute, 550 F.2d 903, cert. then denied)

[David Nieporent]

Genesis Healthcare v. Symczyk, 569 U.S. 66 (decided April 16, 2013): offer of judgment under Rule 68 does not make a case moot if the plaintiff rejects it (seems pretty obvious but this was a “collective” action under the Fair Labor Standards Act and with her accepting the offer there would be no plaintiffs left) (the offer was for full restitution); 5 – 4 decision

That’s actually totally wrong. You’ve described the subsequent holding of Campbell-Ewald Co. v. Gomez. While people hoped that Genesis Healthcare would be a vehicle for resolving the issue you describe, it did not do so. That’s because Symczyk had not challenged the fact that her claim was moot. (She could’ve, since she did not accept the offer of judgment, but she failed to do so and thus waived that issue.) Instead, she argued that she still had standing to pursue the collective action even though her personal claim was moot. That can work in the class action context, but not in the FLSA collective action context, because FLSA collective actions do not create an independent class entity.

Campbell-Ewald directly confronted the bizarre rulings of several circuits that a legally sufficient offer of judgment mooted a case even if rejected. (One circuit had even held that not only was the case moot, but a defendant who served such an offer didn’t have to pay if it was rejected!)

[Dan Schiavetta]

Thanks. I Shepardized and got the cases confused.

[Drewski]

"I imagine this statute is no longer in force — but what was the impetus for it?"

I'm shooting in the dark but it seems likely that the concern over ministers, and lawyers would be that in small communities they would have some likelihood of holding privileged information about any random defendant. Doctors may have similar issues, but along with dentists likely needed to be available in emergencies in rural areas. The last two baffle me somewhat - I can think up excuses but not reasons.

[Krayt]

Muslim valedictorian grad speech cancelled at USC because of failure of government to do its job securing rights.

[SRG2]

Re Baze v Rees – clearly lethal injections are “unusual” according to the BoR – using Scalia’s own criterion, that it’s defined according to what was unusual at the time of the BoR’s incorporation, for he hath said so himself, so it’s surprising that he took no notice of the fact. Oh wait, that only applies when convenient.

[Krayt]

I can't argue unusual w.r.t. what was in use during BoR creation, but I always had a feel it was to stop mocking executions, clever, novel, new "you're a jerk and this is what you get!" executions rather than new, quick and painless ones.

[bernard11]

I can’t argue unusual w.r.t. what was in use during BoR creation,

I think you can. Whether something is unusual or not depends on context. Snow is unusual in Alabama in July, but common in Minnesota in January.

Similarly, a method of execution can become unusual if it falls out of favor and is no longer much used.

The flaw is defining the word to mean "not in common use at the time of the drafting," rather than "not in common use," even though the actual meaning is much closer to the latter.

[SRG2]

Re “not in common use at the time of the drafting,”

There's a good youtube video of Scalia and Breyer armchairing. where Scalia states unambiguously that in his view this is exactly what it means.

[Dan Schiavetta]

As an American I embarrassed by the fact that we still have the death penalty. Other things embarrass me about this country, but this probably is the worst.

[Mr. Bumble]

In your mind is the death penalty ever justified anywhere?

[Kazinski]

I'm embarrassed we use it so seldom.

And to SRG's point, if we need to go back to "hung by the neck until dead" to do it constitutionally then I'm fine with that.

Can't have it both ways: evolving standards make hanging cruel and unusual, but lethal injections were uncommon at the founding.

[Drewski]

"Worst" seems a bit much. We frequently allow police to summarily execute innocent people. Letting them kill the guilty after tons of process seems less of an issue. Mind you, I do think the death penalty is a policy of appeasement of our worst impulses - it's just not the worst policy of that nature, if that distinction makes any sense.