Today in Supreme Court History: April 22, 1992

4/22/1992: Planned Parenthood v. Casey argued.

Comments

[Dan Schiavetta]

Jones v. Mississippi, 593 U.S. — (decided April 22, 2021): not “cruel and unusual punishment” to sentence juvenile to life without parole for homicide so long as it’s discretionary and not mandatory (oh thanks so much — excuse me while I vomit) (15 year old stabbed his grandfather after fight about boy’s girlfriend)

McCleskey v. Kemp, 481 U.S. 279 (decided April 22, 1987): study showing that death penalty imposed more often on black defendants as to white victims did not show specific discriminatory motivation of this jury so as to vacate death sentence

Navarette v. California, 572 U.S. 393 (decided April 22, 2014): warrantless “investigative” stop comported with Fourth Amendment where anonymous 911 caller reported that a vehicle had run her off the road; police located vehicle with reasonable suspicion of intoxication (marijuana found in car)

Schuette v. Coalition to Defend Affirmative Action, 572 U.S. 291 (decided April 22, 2014): Court had no power to strike amendment to Michigan constitution forbidding affirmative action in public education, employment or contracting

Nken v. Holder, 556 U.S. 418 (decided April 22, 2009): strict standard of 1996 immigration statute amendment as to appeal of removal orders (must show by “clear and convincing evidence” that removal order was “prohibited as a matter of law”) refers to orders to “enjoin” removal but not to “stay” removal order; traditional factors governing stays apply (Cameroon national claimed he would face persecution if he returned; removal order later vacated by Fourth Circuit, 585 F.3d 818)

Jinks v. Richland County, S.C., 538 U.S. 456 (decided April 22, 2003): upholding against Eleventh Amendment attack 28 U.S.C. §1367(d) which tolls state statutes of limitations while related federal suit is pending (§1983 action arising from mishandling of alcohol withdrawal in jail dismissed, followed by wrongful death suit in state court)

California v. Deep Sea Research, Inc., 523 U.S. 491 (decided April 22, 1998): not a violation of the Eleventh Amendment to contest with state over ownership of shipwreck; wreck was not in state’s possession (yet) even though in territorial waters

Lukhard v. Reed, 481 U.S. 368 (decided April 22, 1987): upholding against Due Process attack Reagan-era regulation classifying personal injury awards as “income” sufficient to disqualify welfare benefits even though IRS regulations say they’re not income (because the award is not a gain, but to make you whole again)

New York v. P.J. Video, Inc., 475 U.S. 868 (decided April 22, 1986): First Amendment implications of seizing materials listed in warrant did not change standard “probable cause” requirement (store renting out videos of what today would be considered rather limp porn, including “Debbie Does Dallas” and “Deep Throat”, though the latter has a number of good jokes, e.g., the Medicare card)

Ginsberg v. New York, 390 U.S. 629 (decided April 22, 1968): another porn case, where the Court upholds New York statute prohibiting sale to minors

[SMP0328]

Schuette v. Coalition to Defend Affirmative Action, 572 U.S. 291 (decided April 22, 2014): Court had no power to strike amendment to Michigan constitution forbidding affirmative action in public education, employment or contracting

That case involved the Political Process Doctrine, which holds that a government act violates the Equal Protection Clause of the 14th Amendment when it puts a racial minority at a disadvantage in getting legislation passed. The majority rejected a test for determining when this doctrine applied. That test was established in Washington v. Seattle School Dist. No. 1, 458 U. S. 457 (1982), and required determining what the subject minority thought was in its interest and whether the challenged action made it harder for that minority to advance said interest through the political process.

The Schette majority said this test was highly subjective and kind of racist, because it assumed all members of a given racial minority think alike. Instead, the majority said the Political Process Doctrine applied only when there was racial animus on the part of the government that committed the challenge action. The majority determined there was no racial animus in the adoption of the Michigan State Constitutional amendment banning affirmative action by State or local public institutions and so upheld the amendment.

[Dan Schiavetta]

Thanks

[The Margrave of Azilia]

"another porn case, where the Court upholds New York statute prohibiting sale to minors"

Specifically, New York passed a law describing certain types of porn which might or might not be legal to sell to adults, but never to minors.

[JasonT20]

A couple of times in recent threads, various commenters have brought up how difficult it is to pass an amendment to the Constitution. I bring that up here, as it is a common argument to say that the right to an abortion should be in an amendment in order for the Constitution to protect it.

The large super-majority required to pass an amendment has been fairly good at keeping the majority of the moment from changing the Constitution to give them further power and structural advantages in elections. (Of course, that also means that it is difficult to pass an amendment that would remove structural advantages one party has.)

If we look at the 27 amendments, very few of them relate to how the government is structured or how elections are run. Term limits for Presidents, the early reworking of the Electoral College, Presidential incapacitation and succession, direct election of Senators are all we have on the structure of government, correct? Regarding the management and procedures of elections, the amendments have all concerned who is eligible to vote, off the top of my head. Specifically, they have expanded and protected voting rights.

This brings us to the difficult part. Most of the amendments have done something to limit the ability of government to restrict liberties and rights of the people. But notice that after the Bill of Rights, additional protections for individual rights were added to the Constitution only after the devastation of the Civil War or due to the fact of half of the population consisted of women not allowed to vote in most states. The 24th Amendment that made poll taxes unconstitutional came after nearly a century of them being used as one tool to suppress the voting rights of Black citizens.

Amending the Constitution is a poor tool for protecting individuals from the ‘tyranny of the majority’. It only comes when it is no longer a majority that is imposing tyranny, but only after a faction that was ruling as a minority is finally pushed out of power.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

What do you propose, making it easier to pass amendments? All that would do is make it even easier for majorities to impose their will. It certainly wouldn't make it easier for minorities to pass amendments to protect themselves, because majorities could then pass amendments repealing the minority amendments.

[JasonT20]

What do you propose, making it easier to pass amendments?

No, that would likely result in what you describe. It's a very imperfect solution, but the judiciary is only branch of government in a position to protect the rights of individuals against the political branches (whether controlled by a majority or a minority faction able to win elections anyway). The problem for decades has been Presidents and Senators happy to play the game of trying to fill the federal benches with ideologues and partisans on their side.

This has occurred and has become such a dilemma because too few voters realize that they need a judiciary that will set high standards for the government to clear before infringing on anyone's rights. Instead, they only worry about whether judges will protect their rights that they value, while wanting government to restrict the liberties that they don't think other people should have.

[Dan Schiavetta]

If it’s something Republicans want, the Constitution can be amended if approved by maybe 65 to 70 percent of the voting population. Whereas Democrats would need upwards of 90 percent.

[Hugo S. Cunningham]

After Roe v. Wade, a majority of single-issue abortion voters were pro-life. The pro-choice side, feeling secure behind SCotUS, felt free to ignore abortion and vote on other issues. After Casey (1991) gave significant scope for State legislatures to harass abortion (but not to ban it), significant numbers of pro-choice people saw a threat and became single-issue, thus balancing the single-issue pro-life voters. Since then, Dobbs (2023), putting abortion completely into play, has mobilized a pro-choice majority.

[SMP0328]

Since then, Dobbs (2023), putting abortion completely into play, has mobilized a pro-choice majority.

I think after Dobbs (2022), pro-lifers made the same mistake pro-choicers did after Roe and will make the same type of course correction as the pro-choicers did after Casey.

[JasonT20]

Politicians that are pro-life mostly as a political position might course correct, but we are seeing many in deep red states doubling down despite a clear majority within their state not wanting severe restrictions or bans.

The Republican Party as a whole has spent too many years building up its pro-life bona fides to back down until it actually starts costing them control. I don't just mean losing a few seats here and there, that won't move the needle. If it doesn't cost them majorities in state legislatures, or governorships, or Electoral Votes of the all-important swing states, then they won't change their heading at all.

[SMP0328]

In solidly Red States, there’s no need to course correct. In Purple/Swing States, many Republicans are figuring out how far they can go, as opposed to going as far as they would like.

I see Trump doing this when he said each State should decide for itself regarding abortion. He knows calling for a nationwide ban is a political loser, so he’s trying to get Congressional Republicans and the RNC to go the federalism route.

[John F. Carr]

I talked to a single issue voter once. He was with the Libertarian Party on almost everything except abortion. Abortion was his issue so he was a Republican. How many otherwise solid Republicans are switching because of abortion?

[JasonT20]

I would need to see some evidence that there were similar numbers of single-issue pro-choice voters and single-issue pro-life voters at any point in the last 50 years. The Republican Party became so entrenched in its pro-life position precisely because it had deliberately created a solid block of single-issue pro-life voters. They wanted those voters to be reliable at casting straight ticket GOP ballots and turning out to vote. That has been their strategy for decades in order to counter the large numbers of Democratic Party voters among minorities and young people. They have trouble with those demographics, but those groups are unreliable voters.