Today in Supreme Court History: June 27, 2005

6/27/2005: McCreary County, Kentucky v. ACLU and Van Orden v. Perry are decided.

Comments

[Dan Schiavetta]

Won't post my comment!

[Dan Schiavetta]

Whole Woman’s Health v. Hellerstedt, 579 U.S. 582 (decided June 27, 2016): strikes down Texas requirement that doctors performing abortions have privileges at local hospitals (a pretext for making it hard to obtain doctors to perform abortions) and requiring abortion clinics to meet standards of ambulatory surgery centers (irrelevant) as placing an “undue burden” on women inconsistent with Roe (probably no longer good law after Dobbs)

[Dan Schiavetta]

Kennedy v. Bremerton School District, 597 U.S. 507 (decided June 27, 2022): violation of Free Exercise Clause to terminate football coach for kneeling after games “to offer a quiet prayer of thanks” at a time when students and players were free to go elsewhere (Sotomayor’s dissent calls this impermissible “official-led prayer” and attaches photo of what looks like forty players kneeling around the praying coach) (I wonder what Jesus would say about this, Matt 6:5-6)

[The Margrave of Azilia]

Jesus’ remarks suggested that the hypocrites who prayed in public would get earthly benefits for their behavior, precluding heavenly benefits (“they have received their reward in full”).

So you can at least be consoled that earthly benefits were not, at least not immediately, conferred on the coach, who was *fired* for his public praying.

[SRG2]

Wherein Gorsuch described praying on the 50-yard line as "private".

[not guilty]

No need to wonder, captcrisis. Jesus weighed in pretty clearly:

1 Beware of practicing your piety before men in order to be seen by them; for then you will have no reward from your Father who is in heaven.
* * *
5 And when you pray, you must not be like the hypocrites; for they love to stand and pray in the synagogues and at the street corners, that they may be seen by men. Truly, I say to you, they have received their reward.
6 But when you pray, go into your room and shut the door and pray to your Father who is in secret; and your Father who sees in secret will reward you.

Matthew 6 (RSV)

It has nothing to do with the legal merits, but if I had a son playing football, I wouldn't want a huckster like Joe Kennedy anywhere near him. How did an unemployed football coach afford the services of Paul Clement? How much of the crowdfunding take wound up in Kennedy's pocket?

[Mr. Bumble]

Now tell us who funded E(asy) Jean Carroll's lawsuit.

[The Margrave of Azilia]

Why not address the legal merits?

Perhaps Kennedy should have lost his case based on the Bad Person Exception and the Heretic Exception to the Bill of Rights.

[Krayt]

Or the constitution protects the Pharisees’ right to pray loudly on the corners where everyone can see them. The religious infraction is still religion.

[Brett Bellmore]

"How did an unemployed football coach afford the services of Paul Clement?"

That's easy: Clement took the case pro bono.

[David Nieporent]

The Kennedy case is one of those cases in which the real facts make the decision look terrible, but the court relied on imaginary facts which meant that the ruling was much narrower than it superficially appears. The holding of SCOTUS is that a coach in his down time praying by himself doesn't offend the 1A, even if other students just happen to join him. That's not what the coach was doing, but that's the basis for the court's decision.

[JoeFromtheBronx]

A concern is it is a wink to the lower courts to make up facts.

OTOH, Barrett's opinion yesterday was a warning to not use bad facts.

[Dan Schiavetta]

Mallory v. Norfolk Southern Ry., 600 U.S. 122 (decided June 27, 2023): The Court continues to limit the reach of its surprise decision in Daimler AG v. Bauman, 2014, that suing a corporation that is merely “doing business” in a state violates Due Process. First it relied on an obscure venue provision to allow suit against an out of state railroad (BNSF Ry. Co. v. Tyrrell, 2017). Here it holds that registering to do business in a state implies consent to be sued in it. It’s risky not to register, of course, if you want to set up an office there. This reminds me of the Court’s gradual escape from its decision in Pennoyer v. Neff, 1878, that you can’t be sued unless you’re served with papers within state lines. (Suit was for exposure to carcinogens.)

[David Nieporent]

Here it holds that registering to do business in a state implies consent to be sued in it.

No, it didn't. This wasn't an implied consent case. Pennsylvania law expressly said that registering as a foreign corporation in the state would constitute consent to be sued there. Other states' laws don't (or didn't; they may have changed after the case was handed down) say that, and the Court said it wasn't addressing that.

[Dan Schiavetta]

I deliberately phrased it that way because the Court was holding that by registering, the business was providing what might be called "constructive consent". To extort a promise of consent in exchange for registering would be a Due Process violation under Daimler. But thanks for your comment and I'll look at it again.

[Dan Schiavetta]

Bates v. State Bar of Arizona, 433 U.S. 350 (decided June 27, 1977): strikes down on First Amendment grounds prohibition on attorney advertising (thus subjecting us to decades of angry-looking TV actors pretending to be lawyers -- grrr!! snarl!! woof!! woof!!)

[wolfefan]

Wait! You mean that Denny Crane isn't actually a lawyer?!?

[SRG2]

"Get the lawyer commercials you deserve"

[Mr. Bumble]

...and of course the phrase "you may be entitled to compensation".

[Krayt]

"I guarantee...you will be irritated by this ad."

[SRG2]

BTW how much did you laugh when you heard that Cellino was suing Barnes?

[Dan Schiavetta]

https://nymag.com/intelligencer/article/cellino-and-barnes-breakup.html

They had some good attorneys but I only saw one of them (I think it was Cellino) once. He showed up at a settlement conference on a big case (we were prepared to pay eight figures). He was unprepared and distracted and nothing got done.

[Dan Schiavetta]

Ruan v. United States, 597 U.S. 450 (decided June 27, 2022): In his last majority opinion, Breyer holds that doctors convicted of running a narcotics racket could not be convicted under the Controlled Substances Act if they were objectively authorized to prescribe those substances, and it was up to the Government to rebut beyond a reasonable doubt that they were acting in an unauthorized manner (21 U.S.C. §841).

[Noscitur a sociis]

This is at best a pretty convoluted formulation of the holding. I'd suggest something more like, "When a medical provider is charged with the unauthorized distribution of controlled substances, the prosecution must prove beyond a reasonable doubt that they actually knew the distribution was unauthorized." (The alternative being urged by the government was that they only needed to prove that the that the distribution was unreasonably beyond accepted medical standards.)

[Dan Schiavetta]

Thanks. Will look at it again and rephrase.

[Dan Schiavetta]

Counterman v. Colorado, 600 U.S. 66 (decided June 27, 2023): First Amendment does not protect what speaker knows are recklessly stated physical threats (stalker of female singer kept sending Facebook messages saying, e.g., “Staying in cyber life is going to kill you” and “You’re not being good for human relations, Die.”; she kept blocking him but he kept opening new accounts)

[Noscitur a sociis]

Again, a bit convoluted. I'd suggest something like, "To comply with the first amendment, a prosecution for threatening statements must show that the defendant was reckless as to the risk that their statement would be viewed as threatening, but need not prove that they knew or intended them to be viewed that way."

[Dan Schiavetta]

Thanks. Will rephrase.

[Dan Schiavetta]

McCreary County, Kentucky v. ACLU, 545 U.S. 844 (decided June 27, 2005): Ten Commandments posted on walls of county courthouse violated Establishment Clause (county executive had stated in public that the Decalogue was the basis of the civil code) ( -- what? I thought statements of purpose by heads of government were irrelevant -- see Trump v. Hawaii, 2018)

[SRG2]

Scalia's dissent is a model of motivated reasoning. And, saying the quiet bit out loud: "With respect to public acknowledgment of religious belief, it is entirely clear from our Nation’s historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists."

[The Margrave of Azilia]

From George Washington’s First Inaugural:

“Such being the impressions under which I have, in obedience to the public summons, repaired to the present station, it would be peculiarly improper to omit in this first official act my fervent supplications to that Almighty Being who rules over the universe, who presides in the councils of nations, and whose providential aids can supply every human defect, that His benediction may consecrate to the liberties and happiness of the people of the United States a Government instituted by themselves for these essential purposes, and may enable every instrument employed in its administration to execute with success the functions allotted to his charge. In tendering this homage to the Great Author of every public and private good, I assure myself that it expresses your sentiments not less than my own, nor those of my fellow- citizens at large less than either. No people can be bound to acknowledge and adore the Invisible Hand which conducts the affairs of men more than those of the United States. Every step by which they have advanced to the character of an independent nation seems to have been distinguished by some token of providential agency; and in the important revolution just accomplished in the system of their united government the tranquil deliberations and voluntary consent of so many distinct communities from which the event has resulted can not be compared with the means by which most governments have been established without some return of pious gratitude, along with an humble anticipation of the future blessings which the past seem to presage. These reflections, arising out of the present crisis, have forced themselves too strongly on my mind to be suppressed. You will join with me, I trust, in thinking that there are none under the influence of which the proceedings of a new and free government can more auspiciously commence.”

https://www.archives.gov/milestone-documents/president-george-washingtons-first-inaugural-speech

He didn’t say “there is no more than one Almighty Being,” nor yet did he say “the Almighty beings,” not did he say “the being who wound us up like a watch and, satisfied with his work, pulled up a chair and looks at the working out of the logical ramifications of his creation.”

[The Margrave of Azilia]

He wasn't a Bible-thumper, he was a "latitudinarian Anglican" (as a researcher at Mt. Vernon concluded) and a Mason with a belief in a Divine Architect.

Heck, even Jefferson believed in a providential God, and the only Bible Jefferson thumped was one he edited himself, with the miraculous parts cut out.

[Dan Schiavetta]

In that era and with that level of scientific knowledge it was beyond the imagination of most men to abandon theism of some sort.

[The Margrave of Azilia]

And the Constitution was drawn up in that era of ignorance and scientific unenlightenment.

[Dan Schiavetta]

A good argument against originalism .

[The Margrave of Azilia]

You realize that my reference to the late 18th century as a period of scientific unenlightenment was ironic?

The later discoveries of science which were later cited in attacks on Christianity, wouldn’t address the doctrines of Jefferson or Washington, who might even feel vindicated by the evidence of a fine-tuned universe which, against all odds, “happened” to produce human life (and produce humans’ curious attempts, fumbling as they are, to seek knowledge and wisdom).

[Dan Schiavetta]

Darwin provided the explanation which theretofore had been supplied by "the Almighty Artificer".

[The Margrave of Azilia]

"In 1879 John Fordyce wrote asking if Darwin believed in God, and if theism and evolution were compatible. Darwin replied that "a man may be an ardent Theist and an evolutionist", citing Charles Kingsley and Asa Gray as examples, and for himself, "In my most extreme fluctuations I have never been an atheist in the sense of denying the existence of a God.— I think that generally (& more and more so as I grow older) but not always, that an agnostic would be the most correct description of my state of mind.""

https://en.wikipedia.org/wiki/Religious_views_of_Charles_Darwin#Agnosticism

[SRG2]

Yup. Darwin didn't disprove the existence of God (not something that falls within the domain of science( but he made a divine explanation of species diversity unnecessary.

[JoeFromtheBronx]

Scalia's appeal to September 11 was so crude that Kennedy decided not to go along with him in that section.

[Dan Schiavetta]

Van Orden v. Perry, 545 U.S. 677 (decided June 27, 2005): Ten Commandments display outside state capitol did not violate Establishment Clause (you can look up the photo; it’s a small monument, easily passed by)

[Dan Schiavetta]

Printz v. United States, 521 U.S. 898 (decided June 27, 1997): Brady Law provision requiring local sheriffs to perform background checks violated the Tenth Amendment (no, not the Ten Commandments)

[Mr. Bumble]

FWIW have you ever queried the web master as to why you are unable to post your lists on some occasions?

[Dan Schiavetta]

Thanks — I’ve sent them a note

[SRG2]

Occasional VC columnist Stephen Holbrook argued the case for Printz

[SRG2]

*Halbrook

[JoeFromtheBronx]

The power to enforce the Commerce Clause is not "proper" in this context because of the spirit of federalism. Stevens makes a dig about penumbras and emanations.

Thomas also appeals to the Second Amendment.

[Dan Schiavetta]

Dothard v. Rawlinson, 433 U.S. 321 (decided June 27, 1977): upholds regulation that women could not serve in “contact” positions in male prisons because sex offenders would be more likely to assault them (hiring only men was a “bona fide occupational qualification”, or “bfoq” -- did the Justices really say “b-fock” at conference?)

[The Margrave of Azilia]

If this regulation isn't a BFOQ, what would be?

[Brett Bellmore]

I don't know, requiring a black belt or winning record in MMA? I mean, while your average woman would be in extreme danger, there certainly are women who'd be safe enough, and men who wouldn't.

"Male" is a sort of decent proxy for "can hold their own in a fight", but you shouldn't use proxies where direct measurements are available.

[James Alp]

Today in Volokh Conspiracy History: June 27, 2024
Josh Blackman posts another damn link to a YouTube video teasing a little background information on a Supreme Court case and advertising his book, which you can get for $29.99 in paperback, $75.00 hardcover. It's what we read this blog for.

[defaultdotxbe]

I think at this point most of us read it for captcrisis's posts.

[Dan Schiavetta]

I’m not like Josh. I’m not going to shill for “The Supreme Court for Short Attention Spans”, available on Amazon for $35 hardcover, $29 paperback, $9 Kindle and $0 Kindle Unlimited!

[Mr. Bumble]

What, no link?

[Dan Schiavetta]

I told you -- I'm not shilling! Not even for a shilling!

[SMP0328]

McCreary County, Kentucky v. ACLU, 545 U.S. 844 (decided June 27, 2005): Ten Commandments posted on walls of county courthouse violated Establishment Clause (county executive had stated in public that the Decalogue was the basis of the civil code) ( — what? I thought statements of purpose by heads of government were irrelevant — see Trump v. Hawaii, 2018)

Van Orden v. Perry, 545 U.S. 677 (decided June 27, 2005): Ten Commandments display outside state capitol did not violate Establishment Clause (you can look up the photo; it’s a small monument, easily passed by)

These contradictory decisions were the result of Justices Breyer who was in the majority in each of these 5-4 decisions. He agreed with using the Lemon Test in McCreary County, but used history and tradition in Van Orden. He wrote a concurrence in Van Orden explaining this dichotomy as being a result of his balancing of the interests involved.

Kennedy v. Bremerton School District, 597 U.S. 507 (decided June 27, 2022): violation of Free Exercise Clause to terminate football coach for kneeling after games “to offer a quiet prayer of thanks” at a time when students and players were free to go elsewhere (Sotomayor’s dissent calls this impermissible “official-led prayer” and attaches photo of what looks like forty players kneeling around the praying coach) (I wonder what Jesus would say about this, Matt 6:5-6)

This case means that McCreary County is de facto overruled and that Van Orden reflects the views of the current Court regarding the Establishment Clause.

[F.D. Wolf]

Also decided on this day, June 27, was NCAA v. Board of Regents of the University of Oklahoma, 468 U.S. 85 (1984). I would humbly suggest captcrisis put it on his list, as I believe as it is, culturally speaking, one of the most significant decisions of the Supreme Court.

Specifically, the Court ruled that the NCAA's monopoly control over the television contracts of all its members violated antitrust law. It was a 7-2 decision, with Justice Stevens writing the majority opinion, and Justice White, joined by Justice Rehnquist, dissenting.

Exactly who wrote the dissent is particularly noteworthy because Justice Byron "Whizzer" White had been a college football star, an All-American running back at the University of Colorado, finishing runner-up for the Heisman Trophy in 1937. Needless to say, he had a unique perspective on the case.

This is the case, for better or worse (mostly worse, I think most would say), that made college athletics, particularly football, the big business it is today. In a 2023 interview with NBC News, Andy Coats, the lawyer who had represented the University of Oklahoma in the case, expressed his regret for his role: “I think I screwed up college football across the board, because I think the case did it.”

https://www.nbcnews.com/news/us-news/college-football-season-kicks-meet-man-says-screwed-ncaa-sport-rcna101266

[Dan Schiavetta]

Thanks -- that was on my list but it wouldn't post. And you're right about its importance. Though I didn't talk about White (I'll add that for future reference).

[JoeFromtheBronx]

Breyer was the only one to vote for the majority in both cases though for a different reason in Van Orden.

Van Orden advocates: Erwin Cherminksy, Paul Clement, and Greg Abbott.

Rehnquist was out, so Stevens was acting Chief during the arguments.