Today in Supreme Court History: June 23, 1987

6/23/1987: South Dakota v. Dole is decided.

Comments

[Dan Schiavetta]

Kelo v. City of New London, 545 U.S. 469 (decided June 23, 2005): eminent domain power can be used to condemn homeowners’ property and sell to private nonprofit for office space, parking lots etc. as part of downtown revitalization (I assume the compensation paid to Ms. Kelo and her neighbors was the same as was billed to the New London Development Corporation?)

Mahanoy Area School District v. B.L., 594 U.S. 180 (decided June 23, 2021): First Amendment prohibits school from punishing student for vulgar non-disruptive, off-campus speech (she posted on Snapchat “fuck school fuck softball fuck cheer fuck everything”) (sounds like late-period George Carlin)

South Dakota v. Dole, 483 U.S. 203 (decided June 23, 1987): Tenth Amendment not violated by withholding federal highway funds from states with an under-21 drinking age

United States v. Texas, 599 U.S. 670 (decided June 23, 2023): Texas and Louisiana do not have standing to contest new Biden Administration guidelines for arresting/removing noncitizens (Kavanaugh’s opinion: “The States essentially want the Federal Judiciary to order the Executive Branch to alter its arrest policy so as to make more arrests”)

Grutter v. Bollinger, 539 U.S. 306 (decided June 23, 2003): upholding use of race as a “plus factor” but not a “predominating factor” in law school admission policy

Samia v. United States, 599 U.S. 635 (decided June 23, 2023): Confrontation Clause (Sixth Amendment) not violated by jury hearing confession of co-defendant who refuses to testify, if redacted so as as not to implicate defendant (5 - 4 decision, with everybody apparently agreeing with the premise but not on these facts: the confession was that defendant did the shooting, with co-defendant only driving; redacted to put in words “the other person” for defendant’s name, and Kagan in dissent arguing that the jury could easily figure out who that was)

Nance v. Ward, 597 U.S. 159 (decided June 23, 2022): can challenge lethal injection method of execution (painful in his case because of drug-abuse-compromised veins) even if less painful alternate method is not authorized by state law (he wanted a firing squad) (case is still being litigated in lower courts); 5 - 4 decision

Coinbase, Inc. v. Bielski, 599 U.S. 736 (decided June 23, 2023): 9 U.S.C. §16(a) (allowing interlocutory appeal of order denying motion to compel arbitration) divests the District Court of jurisdiction; can’t allow discovery, etc. to go forward while appeal is decided

New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (decided June 23, 2022): striking down on Second Amendment and Fourteenth Amendment grounds state law requiring “proper cause” requirement for open carry handgun licenses; no “strict” or “intermediate” scrutiny analysis relevant, just showing that restriction would be in conflict with historical tradition (law at issue was from 1911 but Court discounts the 20th century)

Micou v. Nat’l Bank, 104 U.S. 530 (decided June 23, 1881): bankrupt father can pay off his creditor daughters ahead of the bank because not with intent to defraud the bank

P.R. v. Branstead, 483 U.S. 219 (decided June 23, 1987): federal courts can order state governors to extradite (one would think this was obvious in light of the Extradition Clause, art. 4, §2, cl. 2, but the Court had held otherwise in Kentucky v. Dennison, 1860)

Fay v. New York, 332 U.S. 261 (decided June 23, 1947): upholding New York’s use of special (“blue ribbon”) jury (education and morality qualifications) in criminal case involving construction contract extortion despite defendant’s argument that such a jury is more likely to convict (statute allowing special juries was repealed in 1965 -- too bad!)

Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (decided June 23, 1982): Massachusetts statute excluding public from trials of those accused of sexual offenses against minors violated Sixth Amendment right to public trial

[ducksalad (5/30 bad, really!)]

Kelo: "sell to private nonprofit..."

I think it would be more truthful to say "passed through a private nonprofit to a variety of private for-profit..." But in any case, why mention it, I don't think the decision hinged on profit vs non-profit.

[ducksalad (5/30 bad, really!)]

"one would think this was obvious in light of the Extradition Clause, art. 4, §2, cl. 2"

I predict some people (maybe yourself?) will think it less obvious when it's a pro-life governor demanding extradition from a pro-choice governor in an abortion case.

More generally, I can see how a court could, at least in theory, enforce an order against a governor. Have US Marshals jail the governor for contempt, for example. But what about cases where the constitution requires a legislature or Congress to do something, and the votes just aren't there? Can a judge have a Senator jailed until he votes "yes" to call a constitutional convention requested by 34 states?

[jdgalt1]

Ultimately either the Constitution compels an act or it does not. In your example I would have the court "deem" Congress's compliance, and rule that the 34 states may arrange to hold their convention without Congress's approval or participation.

[JoeFromtheBronx]

“Obvious”

The 19th Century belief was that there was a need for “comity”, but the federal government did not have the power to force it. This would include the federal courts.

A case involving Puerto Rico is a bit more complicated.

How Congress treated the Fugitive Slave Clause (the Constitution not using that word) is telling. Both are in Art. IV, but more teeth were put in requiring the return of fugitive slaves.

Some radicals argued the federal Fugitive Slave Laws were unconstitutional partially on that ground.

[Dan Schiavetta]

Sorry for the formatting error on the Nance case!

BTW Mr. Nance’s last appearance in court was last month. Still alive & litigating.

[JoeFromtheBronx]

What does South Dakota have against pineapples?

(Oh. Never Minddddd.)

Kelo is a "horrible case" according to many though the policy upheld was allowed in many states, including those that are not merely liberal enclaves. Often the disagreements focus on the felt bad policy involved, including the failures of the public use.

"Case of the Cursing Cheerleader" is a fine addition to miscreants that became Supreme Court free speech cases. Let's add the bong hits dude, and the sexually suggestive political speech.

The religious weirdos who wouldn't pledge allegiance to the flag can be added ("weirdos" is not nice; they were so labeled).

The dissidents who wanted to wear armbands come off as downright gentile. OTOH, Justice Black had an angry dissent even there.

https://teachnthrive.com/history-passages/u-s-passages/the-supreme-court-on-students-freedom-of-speech/

[ducksalad (5/30 bad, really!)]

"Often the disagreements focus on the felt bad policy involved, including the failures of the public use."

Disagree, much of the opposition was immediate and well before anyone knew that New London would be a failure and Mrs. Kelo's house would be an empty lot decades later.

[JoeFromtheBronx]

I have seen many people reference the failures of the policy or the idea the policy was overall bad. The fact it was unconstitutional was mixed a lot with policy concerns.

I think it happened “often” enough that the qualifier is valid.

[ducksalad (5/30 bad, really!)]

At least we agree that the unconstitutionality is a "fact". Too bad about those justices not seeing it.

[JoeFromtheBronx]

We can ... but we don't.

[Dan Schiavetta]

Joe,

Not sure how Emily Litella would think "pineapples". Give me a clue.

[JoeFromtheBronx]

Dole is a brand of pineapples.

[Dan Schiavetta]

Duuhhh. . . .thanks.

[Hugh]

Once again, a federalism dissent from Justice O'Connor that was influential and greatly influenced NFIB v. Sibelius. From the Justice that Blackman said contributed nothing of note to the Supreme Court.

[FTulalip]

One of the worst decisions in recent history, and the fact that the law was passed under Reagan is proof positive he was not a small government conservative.

The federal government has no business regulating the drinking age, or the smoking age, or anything else.

[Dan Schiavetta]

An age-21 drinking age, designed to make the roads safer, is of little use if drunk 18-year-olds keep driving in from the next state where the drinking age is 18.

[Mr. Bumble]

Now do age of consent.
Drinking age was not a federal issue.

[Dan Schiavetta]

You’re forcing me to imagine a man having sex with a 17-year-old girl while crossing from Maryland (age of consent: 16) into Delaware (18). Doing it walking would be difficult (possibly the “Janukurpara” position, if you know the Kama Sutra, or "Tripadam", if the mutual hopping is coordinated). On a bicycle or motorcycle, impossible. It would have to be in a car. I’ve been in those scenarios (no, not with underage girls, and it’s safer if a third person is driving) but I don’t think it’s so prevalent that a state with a higher age of consent would have to worry about it.

[Mr. Bumble]

OK, maybe not the best analogy but the point intended was that the drinking age is not something that should fall under federal jurisdiction. How about it making 21 mandatory for drinking they also included the right to drive? We all know most younger drivers are among the worst.

[Dan Schiavetta]

I don't know exactly what you are proposing.

[Mr. Bumble]

I am not proposing anything only asking if the justification for a 21 year old drinking age would also be justification for a 21 year old driving age.

[Dr. Ed 2]

Or being 21 years old to leave the state for purposes of having an abortion...

[Dan Schiavetta]

Bumble:

That depends on whether sober teenagers are good drivers. Even if they’re not, keeping them away from cars until age 21 is an inconvenience for families. When I got my license at age 16, I became the chauffeur for my 5 younger brothers and sisters.

[ducksalad (5/30 bad, really!)]

Motor skills, reaction time, and inherent ability to stay alert? Teens are probably the best and it all goes (slowly) downhill from there.

Risk assessment, judgment, and actual willingness to stay alert? Well, not so much.

[jdgalt1]

As it was explained to me, no one ever seriously believed that a drinking age of 21 would be obeyed by most people that age. The point of enacting it was to make it harder for high school students (a demographic that covers quite a few 18-year-olds but NO 21-year-olds) to get a friend to buy alcohol for them.

[Dr. Ed 2]

Captcrisis, when this was proposed in the '80s, it wasn't the 18 year olds that anyone cared about -- it was the 15 year olds. They wanted to keep the beer out of the Middle Schools. And particularly High Schools and it was the 17-year-olds who were really bringing up the body count in OUI wrecks.

Remember that this was before graduated license licenses and the rest, when Senior Prom was a night of carnage where almost every high school lost (on average) a kid to OUI. Most high schools lost 2-5 kids to OUI senior year.

Initially it was a given that college kids were going to drink -- it wasn't until the 1990s that there was any attempt to exclude the 19-21 age group, it was understood that they would have older friends to buy for them. If they'd stopped there, things would be OK but they didn't.

[Magister]

While the uniform drinking age was driven in part by concern over drunk driving fatalities, 2 to 5 kids in each high school senior class would mean that essentially all traffic fatalities in those years were high school seniors.

[David Nieporent]

Captcrisis, when this was proposed in the ’80s, it wasn’t the 18 year olds that anyone cared about — it was the 15 year olds. They wanted to keep the beer out of the Middle Schools.

Dr. Ed said this, so it is, of course, not true.

when Senior Prom was a night of carnage where almost every high school lost (on average) a kid to OUI. Most high schools lost 2-5 kids to OUI senior year.

Or this. It is not just wrong, but insane.

[bernard11]

Most high schools lost 2-5 kids to OUI senior year.

This is complete nonsense, straight out of Ed's fantasy life.

I attended a large high school - 2000 students in a three-year school - in the 1960's. Not only did we not not lose anyone to OUI's, neither, so far as I can recall, did other high schools in the area - a medium-sized city.

Oh. And this was true the entire three years I attended.

Why do you make up utter BS?

[JoeFromtheBronx]

It was tied to federal funding of the interstate highways & drinking ages of drivers has a reasonable connection. At least, enough not to put the opinion among the top of the worse column.

The state wasn't required to take the spending. The penalty would have been 10% of federal funding. Not that tight of a string.

Feds have power over tax & spending, including a range of strings. For instance, a tax break for a variety of things that the feds might not be able to regulate directly.

The state raised a 21A argument. A 10% decrease in federal spending for a limited regulation like this doesn't violate the amendment. Again, if it does, it is not some major issue.

Might explain why Scalia went along. It is curious that Brennan dissented (in a brief dissent). He was rarely such a stickler of limits on federal power in that fashion.

[ducksalad (5/30 bad, really!)]

You – and the SC justices – seem to be making a “de minimus” argument that it was merely 10% of a grant the feds didn’t have to give the states anyway, and they didn’t have to take, justifies a clear violation of the intent of the 21st and 10th Amendments.

Which just shows that they are viewed as second-class amendments. Can you imagine approving any of the following:

– A mere 10% reduction in SS benefits for Jews, and they’re even allowed to get it back by renouncing their religion!
– A mere 10% property tax break for registered Republicans, and anyone is allowed to voluntarily register as a Republican.

I think the fact that 50 out of 50 states complied is evidence it was coercive enough to accomplish Congress’s open desire to coerce.

And, no, there’s no connection to what is funded. Federal funding of highways primarily funds creating, paving, and maintaining the highways. Drunk driving by youth has negligible affect on those costs. You could equally well say that pregnant women drive on highways and tie the funding to abortion, or that gun owners drive on highways, and tie the funding to gun laws.

[Dr. Ed 2]

A better example would be a 10% reduction in Medicaid money for states that did not penalize women for not being married before giving birth.

[BrotherMovesOn]

"A better example would be a 10% reduction in Medicaid money for states that did not penalize women for not being married before giving birth."

He's here all week folks.

[JoeFromtheBronx]

Any "clear violation" has to be shown.

The opinion said it wasn't clear. See below for how it notes certain funding limits are not allowed.

"Federal funding of highways primarily funds creating, paving, and maintaining the highways."

Federal funding includes making sure the things funded (federal highways) are smoothly run, including the interstate travel & commerce on them are not endangered by dangerous driving.

Also, any funding string per the decision "may not be used to induce the States to engage in activities that would themselves be unconstitutional. Thus, for example, a grant of federal funds conditioned on invidiously discriminatory state action or the infliction of cruel and unusual punishment would be an illegitimate exercise of the Congress' broad spending power."

Which would address various hypos. The 21A says importation & transportation that violate state etc. laws are prohibited.

States cannot target Jews. They can decide to accept federal funds which requires them to change state policies.

The opinion cited precedent regarding flexibility in federal taxation policy on that point. The 10% fraction is relevant in weighing the validity there.

As to acceptance, I would need to see how many states changed their policy. Regardless, it also suggests it just didn't matter much to them.

[Dr. Ed 2]

The 21st Amendment de-facto created 18 as the national age of majority. It technically doesn't, but that's what it wound up doing, and hence this IS a repeal of that.

I'd love to see a 20-year-old, accused of OUI vehicular homicide, use his age as a defense to that. It would put honest judges in a difficult situation because of mens rea -- if the 20-year-old isn't old enough to drink, then the 20-year-old isn't responsible enough for having drank.

[ducksalad (5/30 bad, really!)]

Wait, don't you mean 26th?

21st - repeal of prohibition, also explicitly assigning regulation of alcohol to the state.
26th - 18 year olds voting in national elections.

[Mr. Bumble]

It seems rightly or wrongly both would apply; a point I was trying to make with captcrisis up-thread.
The 21st should leave the drinking age up to the several states; not the Feds and the 26th should re-enforce an 18 year age for the consumption of alcohol. As always one size does not fit all and good intentions shouldn't trump law.

[Dr. Ed 2]

Raising the drinking age to 21 did not work and created far more problems than it solved. What really cut down on OUI deaths was (a) a changed social attitude toward OUI, including stricter laws, and (b) a change from the 1.5 BAC to the 1.0 and now 0.08 -- roughly half of what it once was.

It created LOTS of problems in colleges -- it has increased binge drinking and "pregaming" or getting drunk before the event. More alcohol is consumed now than before -- there are more places selling it and they are doing well economically -- it's just underground. And it has brought in the drugs, not just pot.

Fentanyl is killing way more people than OUI ever did.

And then the worse thing is that lots of people die on their 21st birthday go wild and sometimes die from either the excessive drinking or related misadventure. What we need is what Canada does, having young people grow up with alcohol under adult supervision.

[ducksalad (5/30 bad, really!)]

It’s getting to where students don’t believe me about how it was in the late 70s.

Professors joining students out in the park with a keg of beer.

A professor who lectured while smoking a cigarette, drinking coffee, and using the chalkboard all with two hands.

College students smoking in class. (HS you had to step outside during breaks.)

K-12 school buses driven by 16 year old high school students.

Pickups in the high school parking lot with filled gun racks in the rear window. And it was pretty typical to leave vehicles unlocked.

Even as late as the 90s we had a student show up on campus carrying six shotguns; handed them out to faculty he was going to guide through some dove hunting later in the day. Can’t imagine the reaction now.

[jdgalt1]

What's your point, other than that it shows how much freedom we've lost and need to take back?

[Dr. Ed 2]

Micou v. Nat’l Bank, 104 U.S. 530 (decided June 23, 1881): bankrupt father can pay off his creditor daughters ahead of the bank because not with intent to defraud the bank

Would that stand up today? (IANAA but don't think so...)

Actually, if I remember my business law class, this would be an explicit violation of today's bankruptcy law.