Today in Supreme Court History: June 12, 1967

6/12/1967: Loving v. Virginia decided.

Comments

[Dan Schiavetta]

Loving v. Virginia, 388 U.S. 1 (decided June 12, 1967): striking down on Equal Protection and (substantive) Due Process grounds Virginia’s prohibition on interracial marriage (a good decision for me personally) (in the trial court the one-year sentence imposed on the Lovings, who had gone to D.C. to get married and were indicted when they moved back to Virginia, had been suspended on the condition that they move out of state and not return for 25 years, not so coincidentally after Mildred was past childbearing age)

Sessions v. Morales-Santana, 582 U.S. 47 (decided June 12, 2017): striking down requirement that foreign-born non-marital children seeking citizenship needed a U.S. citizen father who had been in the country for at least five years before birth while for a U.S. citizen mother needed only one year (8 U.S.C. §1409)

Munaf v. Geren, 553 U.S. 674 (decided June 12, 2008): American citizens held by the post-Iraq-invasion Multi-National Force (allegation was helping al Qaeda, kidnapping) can petition for habeas corpus (the MNF was about to transfer them to a local criminal court for trial), but petition denied here because Iraq had sovereign right to try crimes committed on its soil (our regard for Iraq’s sovereignty is truly touching /s)

Henson v. Santander Consumer USA, 582 U.S. 79 (decided June 12, 2017): Fair Debt Collection Practices Act applies only to those collecting debt “for another”; does not apply to creditor collecting debt for itself, and therefore also doesn’t apply to company which regularly purchases other companies’ debts (opinion by Gorsuch, a wonderfully clear and unpretentious writer)

POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102 (decided June 12, 2014): Food, Drug and Cosmetic Act does not preclude private action for false advertising on a matter the FDA has not set a rule for (Coca-Cola Co. sold “pomegranate-blueberry drink” with only minimal amounts of both) (jury decided for Coca-Cola in March 2016)

Adarand Constr. v. Peña, 515 U.S. 200 (decided June 12, 1995): use of race-based presumptions in approving economically disadvantaged subcontractors on federal projects viewed under “strict scrutiny”, not a more lenient standard (at issue was the awarding of federal highway construction contracts)

Argersinger v. Hamlin, 407 U.S. 25 (decided June 12, 1972): right to have counsel provided (Gideon) applies to all criminal prosecutions not just to those to which the right to trial by jury attaches (which is maximum sentence six months or more)

House v. Bell, 547 U.S. 518 (decided June 12, 2006): habeas after rape/murder conviction may go forward based on chain of custody problems (not heard by the jury) as to the incriminating blood and possible confession of victim’s husband; no proof of “actual innocence” but enough to show that some jurors might have reasonable doubt

New York v. Quarles, 467 U.S. 649 (decided June 12, 1984): statement by handcuffed defendant in supermarket as to nearby location of gun admitted into evidence under “public safety” exception to Miranda (rape victim had told police he had run into supermarket and had a gun; police chased him and found him unarmed)

New York et rel. Kennedy v. Becker, 241 U.S. 556 (decided June 12, 1916): Seneca tribe bound by state fish and game laws despite what was promised to them in 1797 treaty because land in question was not on a reservation

[SRG2]

House is a good demo of how much of the justice system prioritises process over justice. House spent 22 years on death row, was exculpated by DNA evidence among other things, but 3 SC justices - Roberts, Scalia and Thomas - dissented on the grounds that law is more important than lives, and state supreme courts never make mistakes /sarc.

[Noscitur a sociis]

The entire point of the dissent is that the new evidence didn’t exculpate him.

[SRG2]

The DNA evidence did exculpate him later. The dissent required proof of innocence to a standard which made it likely that innocent people would be executed. A reading of the case indicates that the new evidence was more than sufficient to doubt the validity of the conviction – but according to the dissent, that’s not good enough.

It is evident from the dissent that they weren’t concerned about the innocence of House, but about the process – which was my point.

The reasoning adopted by the dissent and the state supreme court is both immoral and illogical. Immoral, in that the execution of an innocent man is immoral, and illogical in that it gives a contingent fact, here, a conviction, the same weight as an absolute fact.

A contingent fact is one which depends on some other fact to support it, and so if the supporting fact isn’t true, the contingent fact is no longer a fact either. Humans have the known cognitive weakness of treating contingent facts as absolute facts. Notoriously, after someone convicted of murder has been released having been exonerated years later, family and the original prosecutor will often state that they still believe the man was guilty, because they treat the contingent fact of conviction as the absolute fact of guilt, and when something is an absolute fact, there’s no evidence that will undermine it. (In Bayesian terms, if your prior is 1, no subsequent evidence can bring it below 1 – but the legal system is non-, indeed, anti-Bayesian, in general.)

[Noscitur a sociis]

The DNA evidence did exculpate him later.

No, it didn’t. The DNA results that ended up exculpating him weren’t at issue in this case (and indeed, the testing wasn’t performed until after this decision).

But that’s besides the point, which is that your original criticism was wrong. The dissenters in this case didn’t “prioritise[] process over justice” or find that “law is more important than lives”. They concluded that the new evidence wasn’t compelling enough to sufficiently call the verdict into question.

[SRG2]

They concluded that the new evidence wasn’t compelling enough to sufficiently call the verdict into question

Which was a perverse conclusion given the evidence, but was entirely consistent with existing precedent and process, hence proving my point. If new evidence reduces the probability of guilt from 95% to say 75%, that should suffice for at least a retrial, not a rejection on the grounds that the revised probability needs to be below, say, 10%.

Also, look up the meaning of the word "later".

[Noscitur a sociis]

Look up the meaning of the word “the”.

The DNA evidence at issue in this case was that semen was from the victim’s husband. The evidence that led to the prosecution declining to retry the case was DNA evidence from a third person (i.e. not the defendant or the victim’s husband).

[not guilty]

Ah, Loving v. Virginia. The only substantive due process case that Clarence Thomas does not want to see overruled.

I surmise he thinks that like affirmative action, substantive due process is a really crappy idea for anyone whose first name is not Clarence or whose last name is not Thomas.

[Dan Schiavetta]

I’m pretty sure no one has dared point that out to him, even in private. The man lives in a state of denial, on several levels. If it ever came up he might shrug Loving off as a dead letter. No state these days is going to outlaw “miscegenation”.

[apedad]

We actually had a bit of a discussion on Loving and Justice Thomas here about two years ago: https://reason.com/volokh/2022/06/28/justice-thomas-and-loving-v-virginia/

[Dan Schiavetta]

Thanks. I stand corrected!

[SRG2]

"History and tradition"...

[David Nieporent]

Once again: Loving was an Equal Protection case. The Lovings wisely did a belt-and-suspenders approach, also making a Due Process argument, and the Supreme Court said, "Yeah, that too." But the bulk of the decision was about EP. You can toss out SDP entirely from your lexicon and it wouldn't overrule Loving.

[SMP0328]

That's also true regarding Lawrence v. Texas and Obergefell v. Hodges. Both cases were primarily EPC cases with SDP being secondary. Repudiating SDP would not alone cause those decisions, or Loving, to be overruled. The Court would also have to greatly narrow its reading of the EPC.

[Noscitur a sociis]

I don't think that's correct. Lawrence is obviously a substantive-due-process only case. 539 U.S. at 564 ("We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution."); see also id. at 579 (O'Connor, J., concurring in judgment) ("Rather than relying on the substantive component of the Fourteenth Amendment's Due Process Clause, as the Court does, I base my conclusion on the Fourteenth Amendment's Equal Protection Clause.").

Obergefell at least discusses the equal protection clause, but I think it's hard to argue that substantive due process isn't foundational to its holding, in a way that simply isn't the case with Loving.

[not guilty]

Yes, Loving considered both equal protection and due process claims. It is an important case in the substantive due process pantheon:

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

388 U.S. 1, 12 (1967).

Justice Thomas has also questioned the reasoning of Meyer v. Nebraska, 262 U.S. 390, 399 (1923), which originally recognized the right of the individual to marry as being within the liberty protected by the due process clause. See, Morse v. Frederick, 551 U.S. 393, 415 n.10 (2007) (Thomas, J, dissenting). If there were no Meyer, then there may have been no Loving. Thomas has expressly rejected the long-settled notion that the Fifth Amendment due process clause includes an equal protection guaranty. United States v. Vaello-Madero, 596 U.S. ___ (2022) (Thomas, J, concurring).

Justice Thomas despises individual liberties.

[Rev. Arthur L. Kirkland]

He seems to adore the liberty to solicit, accept, and try to conceal lavish gifts from ideological and political pals.

[Bob from Ohio]

"also deprive"

So dicta. The court had already reached its conclusion, it was just tossing this in, as David said.

"Justice Thomas despises individual liberties."

Complete BS. You just hate him.

[The Margrave of Azilia]

I suspect Justice Thomas would be more inclined to support Potter Stewart’s concurring opinion, which doesn’t invoke substantive due process:

“MR. JUSTICE STEWART, concurring.

“I have previously expressed the belief that “it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor.” McLaughlin v. Florida, 379 U.S. 184, 198 (concurring opinion). Because I adhere to that belief, I concur in the judgment of the Court.”

https://www.law.cornell.edu/supremecourt/text/388/1&lang=en#writing-USSC_CR_0388_0001_ZC

Anyone want to suggest why Justice Thomas would have disagreed with Stewart?

(When I saw that the thread mentioned Loving v. Virginia, I used CTRL-F to find "Thomas," and what a surprise, they couldn't wait to bring it up.)

[SMP0328]

Adarand Constr. v. Peña, 515 U.S. 200 (decided June 12, 1995): use of race-based presumptions in approving economically disadvantaged subcontractors on federal projects viewed under “strict scrutiny”, not a more lenient standard (at issue was the awarding of federal highway construction contracts)

In Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990), the Court ruled that intermediate scrutiny should be used to review a federal race-based distinction that was intended to be benign toward minorities, as opposed to strict scrutiny that was applied to such distinctions by State or local governments. Adarand overruled Metro Broadcasting and rejected having different levels of scrutiny based on the level of government or the intentions behind the use of race.

[Dan Schiavetta]

Thanks!

[JoeFromtheBronx]

Yes, Loving v. Virginia has been cited for its recognition of a substantive liberty to marry. It was an easy case on that front as compared to some opinions since the arbitrary legislation was racially discriminatory.

Thomas can easily avoid the substantive liberty aspect of the case & uphold it on simple equal protection grounds.

Mrs. Loving near the end of her life said that she believed equality in marriage included same sex marriage.

[JoeFromtheBronx]

Happy Loving Day to the Vice President and First Gentleman, two couples at the Supreme Court, and everyone else who celebrates its principles each day. The Universal Declaration of Human Rights also honors its basic principle.

[Krayt]

“Senate Dems launch sweeping probe into Jared investment firm”

Joker: “And here…we…go!”

Some pairs of parties just want to see the world burn.

And no, dear reader, you obtuse piece of pseudo-profundity echo chamber regurgitating flotsam, I don’t mean civil war. Did you not watch that movie?

The only rubies the size of tangerines are the ones the corruptions in power buy as their net worths skyrockets at multiples of their congressional salaries…when they win and are the party in power, which is what it’s all about.

[Krayt]

House GOP votes to hold Attorney General Garland in contempt

Popcorn! Hot buttered popcorn for watching from a comfy sofa.

Watch the world burn!