Today in Supreme Court History: April 23, 1985

4/23/1985: Cleburne v. Cleburne Living Center, Inc. argued.

Comments

[Dan Schiavetta]

Virginia v. Moore, 553 U.S. 164 (decided April 23, 2008): not a Fourth Amendment violation to arrest rather than issue summons as required by state law (for driving with suspended license) (drugs found incident to arrest) if police had independent “probable cause” suspicion (though I can’t find anything in the opinion that indicates why police had probable cause)

Romag Fasteners, Inc. v. Fossil, Inc., 590 U.S. --- (decided April 23, 2020): can recover profits from infringed trademark (Lanham Act) even when infringement was unintentional (magnetic snap fasteners for handbags, recently very trendy) https://fineartamerica.com/featured/new-yorker-september-24th-2007-paul-noth.html?product=metal-print

Massaro v. United States, 538 U.S. 500 (decided April 23, 2003): ineffective assistance of counsel argument (did not ask for continuance to evaluate surprise evidence as to bullet found in victim’s car) can be raised on motion to attack sentence, 28 U.S.C. §2255, even though not raised on direct appeal

Clark County School District v. Breeden, 532 U.S. 268 (decided April 23, 2001): “I hear that making love to you is like making love to the Grand Canyon.” Not a tactful comment to make to a female co-worker (at least one who isn’t Storm Large). But no evidence that she was punished for complaining about this (though I hope the commenter got some serious grief). Title VII retaliation suit dismissed.

Holly Farms Corp. v. NLRB, 517 U.S. 392 (decided April 23, 1996): NLRB reasonably held (Chevron deference) that truckers hauling chickens to slaughter were not “agricultural workers” exempt from NLRB jurisdiction; therefore they’re entitled to union representation

Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (decided April 23, 1985): This is a weird case. The Secretary of Labor claimed a non-profit violated the Fair Labor Standards Act by underpaying its employees, even though the people at issue denied they were employees but just volunteers, being former drug addicts and “derelicts” who built and staffed facilities in return for food and shelter. The Court agrees with the Secretary, based on the dollar value of what was provided. The non-profit was ordered to provide back pay, and litigation went on for years, with the IRS eventually seizing the properties. (The Alamos led a cult and there was sexual abuse going on, which might have provoked enforcement.)

Florida v. Meyers, 466 U.S. 380 (decided April 23, 1984): no warrant needed for more extensive search of car impounded after arrest following admittedly valid search (strip of cloth found matching victim’s description of what she had been tied down with during rape)

DeFunis v. Odegaard, 416 U.S. 312 (decided April 23, 1974): White man sued law school claiming he was denied admission due to race (of the 37 black applicants who got admitted, 36 had lower LSAT’s than him). He won a preliminary injunction to admit him. By the time the case got the Court, he was in his last semester. Court dismisses case as moot; 5 - 4 decision; dissent (led by Douglas) notes the Constitutional questions that should be ruled on (the Court apparently did not think this was one of those “capable of repetition yet evading review” cases).

Moncrieffe v. Holder, 569 U.S. 184 (decided April 23, 2013): “social sharing” of marijuana (i.e., possession) is not an “aggravated felony” requiring deportation under Immigration and Naturalization Act of Jamaican national (good thing -- otherwise half the college-age Jamaican population of this country would be deported, to hear my dormmate from 1976 tell it -- the one whose wall was plastered with posters of Bob Marley in various clouds of smoke -- “he is seeing God”)

Forncrook v. Root, 127 U.S. 176 (decided April 23, 1888): dispute between beekeepers as to who first devised an improved “honey frame” (prefabricated so that one doesn’t have to fit pieces together, laboriously and inaccurately -- a diagram is in the opinion), and as to whether this is too obvious to be patentable; court affirms verdict for Root (who allegedly started using his model in 1873) against Forncrook (whose patent application was submitted in 1879) (notice I didn’t make any jokes about a “sweet” result, “swarming” sales or “stinging” accusations -- whoops I just did)

[Dilan Esper]

the Court apparently did not think this was one of those “capable of repetition yet evading review” cases

They were right. Bakke came up and raised the same issue and was not moot.

[Noscitur a sociis]

(though I can’t find anything in the opinion that indicates why police had probable cause)

It’s literally in the first paragraph: they got a tip that he was driving on a suspended license, saw him driving, and confirmed his license was suspended.

[Dan Schiavetta]

Whoops! Missed it because it wasn't part of the analysis. Thanks!

[F.D. Wolf]

In Holly Farms, the Court ruled that three classes of workers were not agricultural workers, who are exempt from the NLRA: the "chicken catchers" who manually round up the chickens and put them into cages, the forklift operators who load those cages into the trucks, and the truckers who then haul the caged chickens to the processing plant. The Court was unanimous as to the truckers, but split 5-4 as to the chicken catchers and forklift operators.

[Brett Bellmore]

I think I'd have disagreed about the chicken catchers, but only about them. As far as the other jobs, what they're moving around is totally irrelevant, they might as well be trucking and warehousing toasters.

Catching loose chickens, though? Hard to get much more agricultural than that.

[David Nieporent]

Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (decided April 23, 1985): This is a weird case. The Secretary of Labor claimed a non-profit violated the Fair Labor Standards Act by underpaying its employees, even though the people at issue denied they were employees but just volunteers, being former drug addicts and “derelicts” who built and staffed facilities in return for food and shelter.

The problem was that the T&SAF was using the "volunteers" to staff purely commercial businesses. Not soup kitchens or homeless shelters, but "service stations, retail clothing and grocery outlets, hog farms, roofing and electrical construction companies, a recordkeeping company, a motel, and companies engaged in the production and distribution of candy." So basically it was just exploiting drug addicts.

[SRG2]

Moncrieffe unsurprisingly has dissents by Thomas and Alito - "darkies smoking the devil's tobacco", no doubt. It is sadly funny to find both of them appealing to the text and intent of the law, where to any normal reading, having some weed to smoke with some friends is not "intent to distribute" nor is it an aggravated felony.

Meanwhile in Holly Fatms, O'Connor, backed by Rehnquist, Scalia and Thomas, decides, contrary to logic and definition, that truckers are agricultural workers, presumably on the covert grounds that she - and they - disapprove of the NLRB and its protections. Similar reasoning would lead one to conclude that the changing room staff are footballers.

[Dan Schiavetta]

To take Thomas’s and Alito’s side (for a moment), marijuana was unique in that it was typically (as a matter of custom and courtesy) passed around (“distributed”) with each person taking a puff.

And to take the dissent’s side in Holly Farms, ever hear of the term “truck farms”?

[SRG2]

I had not until now - but it seems that it was commonly the owners of the farm who drove the trucks.

[Dan Schiavetta]

My knowledge also is limited. It used to be a commonly heard term. But the only exposure I really had to it was a 1960’s short on “Modern Truck Farms” viewed by the denizens of the Satellite of Love on MST3K circa 1987. It showed Mexican American teenagers working the fields. Near the end Tom Servo said, “Has anybody seen a truck yet?”

[Brett Bellmore]

Some interesting history behind that usage.

"truck (n.2)

1530s, "act or practice of barter, trading by exchange," from French troque, from troquer (see truck (v.1)). Sense of "dealings" is from 1620s. "Exchange of commodities, barter," then "commodities for barter and exchange." In this sense the word was given a wide use in 19c. American English: "Truck at first meant market-garden produce; then it came to mean stuff in general, including 'doctor-stuff.' SPUN TRUCK is knitting work" [Thornton, "American Glossary," 1912]. Sense of "vegetables raised for market" is from 1784, preserved in truck farm (1866)."

[Brett Bellmore]

This, by the way, accords with the usage I've seen of it while living in a farming area: The "truck" in "truck farm" didn't refer to the vehicles at all, but the crops being raised. In practice a 'truck farm' isn't raising bulk crops like wheat or field corn, but instead the sort of vegetables directly consumed by people. THAT is the 'truck' in truck farm.

[Dan Schiavetta]

Thanks
Perhaps this is related to the old phrase “I have no truck with that (argument)”?

[Brett Bellmore]

Yes, I think so, in the sense of "dealings".

[Bob from Ohio]

"Thomas and Alito – “darkies smoking the devil’s tobacco”, no doubt"

Ah, the privilege of a white liberal calmly calling a black man a racist/"Uncle Tom". Well done!

[SRG2]

You racists can't resist an opportunity to accuse others of racism, can you?

Thomas will bend over backwards in disavowal, IMO.

Ask your black friends about him - if you have any.

[Bob from Ohio]

No denial, just a baseless accusation thrown back.

"My black friends hate Thomas" so "I can be racist". Quite a comment!

"You racists can’t resist an opportunity to accuse others of racism, can you?" You have no sense of irony at all.

[Rev. Arthur L. Kirkland]

Justice Thomas is the kind of Black person (and just the kind of person) who hangs around -- whenever he can, so long as the jet or yacht is there for him to board -- with Hitler fans.

[F.D. Wolf]

You have misread O'Connor's concurrence/dissent. She concurred with the majority that the truck drivers were not agricultural workers, but dissented from the Court's holding that the workers who manually rounded up the chickens and put them in cages and the forklift operators who then loaded those cages onto the trucks were not agricultural workers. The majority conceded that this was a plausible reading of the statute, but fell back on Chevron deference to hold that the NLRB's contrary interpretation was not "unreasonable."

[SRG2]

Fair enough

[Estragon]

Four years ago today:

"So supposing we hit the body with a tremendous — whether it's ultraviolet or just a very powerful light — and I think you said that hasn't been checked because of the testing… And then I said, supposing you brought the light inside the body, which you can do either through the skin or some other way, and I think you said you're going to test that, too."

[Estragon]

“I see the disinfectant that knocks it out in a minute, one minute. And is there a way we can do something like that by injection inside or almost a cleaning? As you see, it gets in the lungs, it does a tremendous number on the lungs, so it would be interesting to check that.”

[Bob from Ohio]

"My uncle was eaten", a few days ago

[Estragon]

Is that a direct quote?

[Bob from Ohio]

“they never found the body because there used to be a lot of cannibals, for real, in that part of New Guinea.”

[Magister]

Happily, nobody has suffered any health consequence from that story from Biden, as opposed to people who nebulized hydrogen peroxide and did other stupid things that Donald Trump touted during the worst pandemic in a century.

But same same for Bob, I guess.

[Rev. Arthur L. Kirkland]

Should it bother me that the type of rural, white, half-educated hayseeds who listen to Donald Trump are dying off at an especially rapid pace?

Or should we just figure that one fewer bigot is always a point of progress?

[Paladin_44]

Hmm...
Think I'll go with door 2 Arthur.

[Rev. Arthur L. Kirkland]

It is difficult to fault that judgment.

[Brett Bellmore]

Might hydrogen peroxide reduce the hospitalization rate and complications of SARS-CoV-2 infection?

"We propose a regimen of gargling 3 times per day for disinfection of the oral cavity and nasal washes with a nebulizer twice daily (due to a greater sensitivity of the nasal mucosa). Hydrogen peroxide (H2O2) is safe for use on the mucous membranes as gargling or as a nasal spray; in fact, it is already commonly used in otolaryngology. Figure ​Figure11 shows the epithelial of oral mucosa treated with H2O2 3% for a period of 6 months. No damage was observed on oral mucous membranes or their microvilli after ongoing gargling treatment with H2O2 3%. Another route for SARSCoV-2 is through nasolacrimal ducts; thus, we advise the use of iodopovidone 0.5%–0.6% as eye drops (1 drop 3 times daily on conjunctiva of both eyes) due to its antiseptic action against SARS-CoV-2 within 1 minute."

Further observations on hydrogen peroxide antisepsis and COVID-19 cases among healthcare workers and inpatients

"Conclusion

Regular, daily HPA protects HCWs from COVID-19, and curtails nosocomial spread of SARS-CoV-2."

You know, I don't approve of Presidents blue-skying on a live mike, but the lengths Trump's opponents have gone in characterizing this as stupid are absurd. In fact, he was just mentioning something that was actively being explored at the time by medical professionals, and which actually turned out to be darned effective.

So, in the end, your evidence that he's a dangerous idiot was actually evidence that he was being kept current on the medical research!

[Magister]

Nebulizing hydrogen peroxide and inhaling it into your lungs is dangerous and completely different from anything you describe. And it's at the low end of what Donald Trump talked up, with no basis in medical research.

[Brett Bellmore]

(CNN) Fact check: Biden makes false and misleading claims during Pennsylvania campaign swing

" President Joe Biden spent three days this week campaigning in the critical swing state of Pennsylvania. He littered his remarks with false and misleading claims on subjects ranging from his annual earnings to his cap on seniors’ prescription drug spending to the demographics of China to the frequency of his past travel to Iraq and Afghanistan.

And in Biden’s most eyebrow-raising remarks of the campaign swing, he told and then retold a story in which he strongly suggested his late uncle, Ambrose Finnegan, was eaten by cannibals after his plane was shot down while he fought in World War II. Biden’s dramatic details don’t match the Defense Department’s official account of the plane crash. "

And this is CNN, probably the most pro-Democrat network out there.

The guy is a serial fabulist, the only way he's not just lying his head off is if he's lost the capacity to distinguish reality from politically useful fiction. Really, he's always been this way, but even his political allies are noticing that it's gotten a lot worse in the last few years.

[Estragon]

“Serial fabulist”

How do you feel about the claim “thousands” of people were turned away from protesting at Manhattan criminal court yesterday?

[Magister]

CNN is both-sidesing vigorously to deflect criticism. I've not seen many lies by Biden with actual implications for the policies of his administration; they're not going to start a military operation to eradicate last century's cannibals in New Guinea. Whether Biden went to Afghanistan and Iraq 21 or 38 times doesn't represent any qualitative difference. Contrast with the election Big Lie, the dishonest pandemic response that killed Americans unnecessarily, and so many other consequential lies from Trump.

(I expect one will also find internet commenters saying "I was a lifelong Democrat voter until Joe Biden exaggerated the number of times he was in Iraq and Afghanistan.")

[Estragon]

“Thousands of people were turned away from the Courthouse in Lower Manhattan by steel stanchions and police, literally blocks from the tiny side door from where I enter and leave. It is an armed camp to keep people away. Maggot Hagerman of The Failing New York Times, falsely reported that I was disappointed with the crowds. No, I'm disappointed with Maggot, and her lack of writing skill, and that some of these many police aren't being sent to Columbia and NYU to keep the schools open and the students safe. The Legal Scholars call the case a Scam that should never have been brought. I call it Election Interference and a personal hit job by a conflicted and corrupt Judge who shouldn't be allowed to preside over this Political Hoax. New York Justice is being reduced to ashes, and the World is breathlessly watching. Hopefully, Appellate Courts can save it, and all of the companies that are fleeing to other jurisdictions. They can no longer take a chance on New York Justice!”

[Dan Schiavetta]

I am ashamed that this juvenile was my country’s President. If I ever travel abroad I will do so with a paper bag over my head.