The Volokh Conspiracy
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Today in Supreme Court History: May 5, 1992
5/5/1992: The 27th Amendment is ratified. It was initially proposed in 1789.
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
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Town of Greece, N.Y. v. Galloway, 572 U.S. 565 (decided May 5, 2014): opening town board meetings with almost inevitably Christian prayer (rotating local ministers were almost all Christian) does not violate Establishment Clause; no attempt at proselytizing (overruling without admitting it County of Allegheny v. ACLU, 1989) (5 – 4 decision)
Kaupp v. Texas, 538 U.S. 626 (decided May 5, 2003): waking 17-year-old defendant from bed (after let in by father), handcuffing him, and walking him to police station shoeless in winter was “arrest” such that confession obtained was inadmissible (and I’m not telling all of it! hard to believe lower court judges said this was O.K., but it seems everyone knew each other and the cops knew this kid had done a bad thing, namely stabbing a missing 14-year-old friend)
Illinois ex rel. Madigan v. Telemarketing Assocs., 538 U.S. 600 (decided May 5, 2003): First Amendment does not bar prosecution of fundraisers lying about where the money goes
Smalis v. Pennsylvania, 476 U.S. 140 (decided May 5, 1986): “Causing a catastrophe” is apparently a criminal offense in Pennsylvania. Defendants allegedly allowed their building to burn, causing deaths of tenants. Their motion to dismiss at the close of prosecution’s case based on insufficient evidence was granted. The Court holds that this counts as an “acquittal” and appeal is barred by Double Jeopardy.
Moore v. Ogilvie, 394 U.S. 814 (decided May 5, 1969): striking down on Equal Protection grounds Illinois statute allowing third party on ballot only if 200 voters signed petition from each of the 102 counties (which gives much greater weight to voters from sparsely-populated counties; Hardin County, the least populous, currently has a voting population of about 2,000)
Kramer v. Caribbean Mills, Inc., 394 U.S. 823 (decided May 5, 1969): plaintiff, who had paid $1 for right to sue owned by Panama corporation which had the real claim against a Haitian corporation (and then sold it back under similar arrangement), was “collusively” a party for the sake of invoking federal court jurisdiction even though the arrangement was legal under state law; case dismissed
Poland v. Arizona, 476 U.S. 147 (decided May 5, 1986): Double Jeopardy does not bar re-sentencing (appellate court found different reasons to support death penalty)
Yates v. United States, 356 U.S. 363 (decided May 5, 1958): Smith Act conviction reversed on appeal, but contempt for refusal to answer questions during trial survives; Court holds that the seven months spent in prison during the proceedings was already adequate punishment (this was Oleta Yates, a CPUSA official)
Carnegie Steel Co. v. Cambria Iron Co., 185 U.S. 403 (decided May 5, 1902): patent upheld for mixing molten steel from different furnaces for uniformity; not “anticipated” (i.e., obvious in light of then-current technology) by established process which did not hold molten steel in common container
Robers v. United States, 572 U.S. 639 (decided May 5, 2014): amount owed to bank under Mandatory Victims Restitution Act of 1996 (here, fraudulent mortgage application) reduced by amount realized by sale of collateral, not by the value of the collateral at the time of the fraud
captcrisis is able to identify worthy points of Supreme Court history nearly every day.
Profs. Barnett and Blackman evidently were not.
Yet they publish this rubbish — including falsehoods that have been identified by readers for years but have never been corrected — every day.
Is this what passes for “scholarship” among movement conservatives?
“County of Allegheny v. ACLU, 1989)”
Isn’t that the Jesus-with-Santa-and-reindeer case?
“Moore v. Ogilvie”
The courts do a lot of entrail-reading to see which signature requirements are pleasing to the gods and which are not.
The “reindeer rule” began with a Rhode Island case from 1984 which I can’t find now but which I commented on at some point.
As for Moore, it did not involve fake signatures. It just stood for the idea that 39 million people should have a little more voice than 570 thousand (koff, koff, U.S. Senate).
And was shortly rendered moot by the federal judiciary in Boehner v. Anderson and Schaffer v. Clinton, by, respectively, allowing Congress to outsource decisions increasing its pay, and denying members standing to challenge on the basis of the 27th amendment.
So Congress no longer votes on its own pay raises, and the amendment has no application.
In Boehner v. Anderson (D.C. Cir. 1994), the court held the 27th Amendment does not apply to automatic cost-of-living adjustments (COLA). In Schaffer v. Clinton (10th Cir. 2001), the court held a congressman does not have standing to challenge COLAs. The Supreme Court denied cert in the case.
As the D.C. Circuit had found that a congressman “obviously” has standing, there is a circuit split on the question of standing. I believe these are the only two cases on the Amendment. The Supreme Court has not yet opined on the issue. (I’ll note that the D.C. Circuit opinion was written by Judge Douglas Ginsburg who had been President Reagan’s choice for a Supreme Court nomination after the Senate’s rejection of Judge Robert Bork, but he was never formally nominated when revelations that he had smoked marijuana as a law professor came to light.)
The 27th Amendment, of course, applies not only to pay raises but also pay cuts. One might imagine a lame-duck Congress after an election in which the majority party has been swept out of office pass a pay cut for the next Congress. Such an action would obviously be prohibited by the Amendment. (Assuming, of course, that someone had standing to challenge such an action).
What a great choice for Today in Supreme Court History!
COLAS, just another “benefit” of inflation.