Today in Supreme Court History: June 28, 2010

6/28/2010: McDonald v. City of Chicago is decided.

Comments

[Dan Schiavetta]

McDonald v. City of Chicago, (decided June 28, 2010): Second Amendment right identified as to federally administrated areas in District of Columbia v. Heller, 2008, also applied to states (i.e., incorporated by the Fourteenth Amendment)

National Federation of Independent Business v. Sebelius, 567 U.S. 519 (decided June 28, 2012): upheld the Affordable Care Act’s mandate for everyone to buy insurance as exercise of Congress’s taxing power (which can be used to provide for country’s “general welfare”)

United States v. Alvarez, 567 U.S. 709 (decided June 28, 2012): Stolen Valor Act (criminalizing false statements about one’s military decorations) struck down on First Amendment grounds (though shame still has an effect: remember Admiral Boorda who committed suicide after he was caught in a lie about just one medal on his “fruit salad”?)

United States ex rel. Brown v. Lane, 232 U.S. 598 (decided June 28, 1914): upheld Secretary of the Interior’s right to remove “for good cause” all the members of a tribal council elected by tribe members without notice or hearing or right of appeal (i.e., in reality it could be “for bad cause” or “for no cause at all”)

Lemon v. Kurtzman, 403 U.S. 602 (decided June 28, 1971): First Amendment not violated by statute allowing public funding of religious schools of secular subject textbooks and materials; established the “Lemon test”, where the statute has to 1) have a secular purpose 2) not have the effect of advancing or inhibiting religion and 3) not result in excessive entanglement with religion

North v. Russell, 427 U.S. 328 (decided June 28, 1976): Equal Protection not violated when lower criminal courts in small towns could have nonlawyer judges when in city courts judges had to be lawyers; first level of appeal in small towns was to courts with lawyer judges

Nixon v. Administrator of General Services, 433 U.S. 425 (decided June 28, 1977): Nixon could not deny request for records created while he was President (might have been a different result if he could argue self-incrimination, but he had been pardoned by Ford)

Regents of University of California v. Bakke, 438 U.S. 265 (decided June 28, 1978): race can be used as factor in admission to public university (here, the University of California, Davis Medical School) but quotas are impermissible

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (decided June 28, 1993): expert opinions in federal court (even as to state law claims) have to be based on reliable principles reliably applied; this holding was later encoded as amendment to Fed. R. Evid. 702

Mitchell v. Helms, 530 U.S. 793 (decided June 28, 2000): First Amendment not violated by government loans to religious schools for secular programs

Stenberg v. Carhart, 530 U.S. 914 (decided June 28, 2000): struck down Nebraska statute making “partial birth abortion” (properly called late term abortion) illegal even if mother’s life endangered; this was held inconsistent with Roe (but is the Nebraska statute really revived under Dobbs?)

Hamdi v. Rumsfeld, 542 U.S. 507 (decided June 28, 2004): U.S. citizen can be detained as an “enemy combatant” but has the right to habeas corpus with due process; effectively superseded by the Military Commissions Act of 2006 which stripped federal courts of jurisdiction

[John F. Carr]

On the viability of Stenberg v. Carhart: The Partial Birth Abortion Act of 2003 was upheld by the Supreme Court in Gonzales v. Carhart. Carhart died last year. If the decision of the District Court survives the state may need to formally request it be dissolved.

[Dan Schiavetta]

Thanks !

[apedad]

As a military veteran, I agree with the United States v. Alvarez (2012, 6 - 3), decision since it simply involved speech.

The dissent (Justices Alito, Scalia, Thomas), stated, "In many instances, the harm is tangible in nature: Individuals often falsely represent themselves as award recipients in order to obtain financial or other material rewards, such as lucrative contracts and government benefits."

Congress and Pres. Obama addressed their dissent with the Stolen Valor Act of 2013 where in addition to a wrongful claim of receiving one of the listed military awards, the person had to have an intent to gain some benefit or something of value by fraud also.

[David Nieporent]

Of course, fraud was already illegal, so this law was gratuitous.

[Mr. Bumble]

Like "hate crimes"?

[Malika the Maiz]

The idea behind hate crimes "laws" (they're usually sentencing enhancements from what I understand) is they do an additional harm (put fear into entire groups) and/or are, like other motives which warrant sentence enhancements, seen as especially reprehensible. I guess you could argue, as the Margave does, that this form of "fraud" does the additional harm of diluting actual veterans heroism and/or is especially reprehensible.

[JoeFromtheBronx]

Yes, a hate crime [which I grant can be a problematic category of law] has the special concern of addressing harm to a group.

A simple vandalism law can address spray painting a church or synagogue. But, it is not just “simple” vandalism. It targets religion and a whole group. Catholics and Jews as a whole are harmed.

Again, I know we can debate that.

As to the Stolen Valor Act, the overall concept is not simply “fraud,” which has certain legal criteria. It is a wider message of legislation protecting the integrity of heroes and heroism.

(Again, we can debate the problems, including the case itself.)

Legislation often somewhat redundantly involves specific categories of wider concerns.

[The Margrave of Azilia]

I don’t see how free speech would be threatened by requiring Americans to tell the truth about the military honors they received. It's not just about financial fraud, it dilutes the value of the *real* honors received by veterans.

At least burning the flag doesn't deceive people, it makes clear the burner's attitude toward the U. S. and/or American institutions.

How does faking a medal even potentially contribute to public discourse?

[Mr. Bumble]

Ask falsus in uno, falsus in omnibus Da Nang Dick.

[apedad]

Why does any speech have to contribute to public discourse?

And yes, I think people who falsely claim they were in the military and/or received honors are weak minded wannabees – but meh…

“Well, the world needs ditchdiggers too.”

[The Margrave of Azilia]

Digging ditches is honorable, or can be such.

Impersonating someone who earned a military honor is dishonorable, and Congress can protect the value of its honors from dilution,

While I presume soldiers don't fight just because they want to get honored, getting a decoration for courage would be a good morale-booster and an inspiration to others.

[Malika the Maiz]

What other falsities would you be ok with making criminally punishable?

[The Margrave of Azilia]

Fraud and perjury.

(Though I wouldn't strain to find perjury from good-faith attempts to answer questions.)

[Malika the Maiz]

Well, this is kind of a subset of fraud, isn't it? Let me rephrase the question, are there any other subsets of fraud that are currently not criminally punishable that you'd be ok with seeing being so treated, or is there something special about veteran status/military accomplishments (and I'm not being snarky here, I wouldn't be surprised if at the end of the day I agree there might be).

[The Margrave of Azilia]

I can’t immediately think of some other category of falsehood which should be criminalized but which isn’t criminalized today.

There are times when criminalizing falsehood has the effect of punishing potentially truthful speech, for example during the Sedition Act prosecutions of 1798-1800. Defendants were convicted of falsehood for statements which were a legitimate subject of political debate.

I don’t see how the Stolen Valor Act could be abused in this way, though I’m always ready to be surprised by further evidence of prosecutorial misconduct.

[Malika the Maiz]

Hmm, I'm wracking my brain here.

How about a musician who claims, falsely, that they played on some famous tours or worked on some famous albums. They don't claim any royalties or whatever, but these falsehoods get them future gigs. Ok with punishing them criminally?

[The Margrave of Azilia]

No, they're not stealing the valor of our defenders.

[Malika the Maiz]

As a First Amendment argument, why is stealing the valor of our defenders dispositive in the comparison?

[Krayt]

How does faking a medal even potentially contribute to public discourse?

I will not state ex cathedra there could be no such possibility.

However, I will point out my usual statement: the benefit of the First Amendment isn’t that there’s value in every last goober drooled from some yokel’s mouth. It’s in denying dictator wannabees one of their best clubs in the Tyrant’s Golf Bag of Tyranny.

There was a concerted effort a few years back to “revisit” the Marketplace of Ideas, but not to wax glowingly on its wisdom, but to perform an insidious assault on the First Amendment by suggesting some statements were worthless, and therefore bannable. I prognosticated this as a theory, which was proven right two weeks later when Radiolab held a debate, where the conclusion of one side was exactly that.

[Dan Schiavetta]

apedad

Thanks!

[apedad]

.

[Commenter_XY]

I don't know what anyone else thinks of last evenings debate, but I think this pretty much summarizes what is happening at the DNC HQ today. 🙂

https://www.youtube.com/watch?v=UerhqPf3JBA

[Malika the Maiz]

I think any fair minded person watching the debate not 'primed' by media coverage would concede that Biden seemed old but also that Trump seemed dodgy and unhinged. The thing is the former sends Democrats into a panic while the GOP has been and is fine with the latter.

[Dan Schiavetta]

Agreed.

A double standard applies. There is no limit to the level of incompetence or unfitness for office that is tolerated with a Republican. However it is important that Trump be defeated. By all accounts Biden is hardworking, compassionate, competent and in touch with reality (none of which is true of Trump). But his increasing inability to be coherent in public is getting to be an insurmountable electoral handicap (whereas it never was with Trump). I think Biden should resign.

[Malika the Maiz]

It's not even so much about his coherence imo, Trump is nowhere near coherence and hasn't been for a long time if ever. Biden wasn't "incoherent" last night, it was fairly plain what he was trying to argue or say. He just wasn't good at it and presented poorly.

Policy wise, that really doesn't matter. A President's staff and multiple other people make that happen. But a President who can not present as a leader is problematic to say the least.

[David Nieporent]

But his increasing inability to be coherent in public is getting to be an insurmountable electoral handicap (whereas it never was with Trump). I think Biden should resign.

Every single word out of Trump's mouth in the debate was either a lie or Frankfurtian bullshit, but Joe Biden wasn't capable of calling him on it. That's bad.

Also, I don't know whose idea the rules were — CNN's or the DNC's or the RNC's — but preventing Trump from speaking out of turn really helped him. He seemed a lot more sane than he is in real life, when he wasn't able to try to shout down his opponent.

[Commenter_XY]

POTUS Biden lost the election last evening. David, I don't think the country is going to elect a developing vegetable. Nothing else really matters. We all have elderly relatives and we know that this is as good as it gets with POTUS Biden.

We are in 25A territory, from what I saw last night. Team D has soul searching to do. So does the Cabinet.

[Dan Schiavetta]

By all accounts Biden is an active and competent President, working a full schedule every day (unlike Trump). He was never good at public speaking, always subject to rambling and malapropisms, and his age has aggravated his lifelong stuttering problem. But he’s not by any means not up to the job. We haven’t had anyone say he’s not “with it” (contrast the many comments made about Trump’s laziness and incompetence by the people who worked with him). The problem with Biden is how he presents in public.

[Malika the Maiz]

"We are in 25A territory, from what I saw last night. "

That's crazy, presenting poorly in public a few times is > what the 25th is talking about.

[Krayt]

preventing Trump from speaking out of turn really helped him. He seemed a lot more sane than he is in real life, when he wasn’t able to try to shout down his opponent.

To adopt a Bill Maherism, “Yes, but…” That was the whole point, to stop that exact behavior. People look at parents who have kids on a literal leash and shake their heads, but it keeps the kid from running into the street. Kid looks better behaved. Rats?

[defaultdotxbe]

I think Democrats were spoiled by Obama. Regardless of his policies he really was an ideal political candidate. I suspect they will be chasing the thrill of that high for years to come.

[Malika the Maiz]

This times a thousand. I think the Obama years allowed the leftist base to vastly overestimate their political valence.

[JoeFromtheBronx]

Biden is also an ideal candidate in various ways.

He was an excellent choice for 2020.

He might have had the best shot to win the necessary states in 2016, but he had personal reasons for not running.

He is regularly very good in public appearances. He can be very good person to person.

He also could give a good speech. See, e.g., the state of the union.

He appeals to many groups, including some who might be turned off by Barack Obama.

An extended debate is harder given his skillset, especially if he had a cold or something, which seems to be the case.

Even there, he did a better job in debates against Trump last time. Anyway, given his record & overall personality, I think Biden is a good candidate, especially given the alternative.

[Brett Bellmore]

The problem is that "dodgy and unhinged" is a judgement that can really be skewed by whether you approve of a candidate's positions. Biden can come off as pretty unhinged himself, when he gets going about using F-15s on Americans.

[Malika the Maiz]

Well, yes, if you’re unhinged it would make it difficult to recognize some unhinged behavior.

"when he gets going about using F-15s on Americans."

Was that mentioned in the debate we are talking about?

[Michael P]

Did Joe Biden mention during the debate that the Russians planted his son's laptop on his son?

He doesn't always repeat all of his lies in a given 90 minute segment.

[SRG2]

I note that Lemon is now history. As I wrote elsewhere

...the decision [in Kennedy] puts the final nail into the coffin of Lemon v Kurtzman, which was the key modern "separation of church and state" case.

All cases for the last 50 years or so which used the "Lemon test" to determine whether a government action was an unconstitutional endorsement or advancement of religion are basically out of the window, including "Edwards v Aguillard", which was the last evolution case to go to the Supreme Court.

The court ruled 7-2 in that one that (in summary) you couldn't teach Creationism in science classes. Scalia, in dissent, said, basically, that provided a legislature looks like it's engaged in honest inquiry into teaching Creationism and finds that it's science, hey, it's not unconstitutional.

With the Lemon test gone, and not a single judge from Edwards still on the court, it is very likely that the anti-science theocrats in many states will start pushing either for evolution teaching to be stopped or cut back, or for Creationism (including its even more dishonest offspring, Intelligent Design) to be taught in HS classrooms.

The last major evolution case was Kitzmiller v Dover, where an honest conservative judge in Pennsylvania found, correctly, that ID was not science. The current SC lacks that integrity, and are quite capable of going along with Scalia's "reasoning" in Edwards.

[Malika the Maiz]

See Oklahoma and Louisiana recent activity.

[SRG2]

I think they go too far even for this court - but a more subtle approach may be successful. And ID is certainly a more subtle approach, as it was designed to be.

[Michael Resanovic]

Who doesn't like a good B-Movie ghoul?

[SMP0328]

National Federation of Independent Business v. Sebelius, 567 U.S. 519 (decided June 28, 2012): upheld the Affordable Care Act’s mandate for everyone to buy insurance as exercise of Congress’s taxing power (which can be used to provide for country’s “general welfare”)

The switch-in-time that saved Obamacare.

Mitchell v. Helms, 530 U.S. 793 (decided June 28, 2000): First Amendment not violated by government loans to religious schools for secular programs

Overruled Meek v. Pittenger, 421 U.S. 349 (1975) and Wolman v. Walters, 433 U.S. 229 (1977).

Lemon v. Kurtzman, 403 U.S. 602 (decided June 28, 1971): First Amendment not violated by statute allowing public funding of religious schools of secular subject textbooks and materials; established the “Lemon test”, where the statute has to 1) have a secular purpose 2) not have the effect of advancing or inhibiting religion and 3) not result in excessive entanglement with religion

Overruled by Kennedy v. Bremerton School District, 597 U.S. 507 (2022).

[JoeFromtheBronx]

Patient Protection and Affordable Care Act

[SMP0328]

Even President Obama has called it "Obamacare."

[JoeFromtheBronx]

Okay. I don't know why, but it is not surprising that someone likes a label that makes it so much about himself. Also, the term became (unfortunately) common usage.

The Supreme Court used the actual name, not a misleading label suggesting it is akin to Medicare.

It also misleads because "Obama" is not the person who crafted the law. The law is mostly a creation of the Senate ("Reidcare"?) with the House adding an addendum ("PelosiCare"?).

Labels usually are not named after presidents, for good reason. Sometimes, foreign policy ("Bush Doctrine") will be though presidents do have a lot of power there.

"Reaganomics" is also one exception, but there too it was much more a product of the Reagan Administration than here.

[Michael P]

That law notably did not protect patients or make healthcare affordable, so "Obamacare" is a more honest name for it.

[JoeFromtheBronx]

McDonald v. City of Chicago was a logical application of D.C. v. Heller. Thomas alone wanted to rest on the Privileges or Immunities Clause. Scalia was sarcastic. The advocate didn't say, 'Well, you want us to talk about it.'

Alito's opinion at one point noted how the concerns moved from a militia focus to a more individual rights focus by 1868. His summary of the history and law & his opinion announcement is helpful.

United States v. Alvarez might be George Santos's favorite opinion except for that part where the plurality goes on and on about how much of a liar Alvarez is.

[Commenter_XY]

Chevron is now history...

[apedad]

Until it's reinstated.

These 6 - 3 decisions are just the last desperate attempts for the conservative majority to put their (temporary) stamp on things.

They're worried that if Biden wins they don't have much time left on the court especially Thomas (74) and Alito (72) (will they still be there 5 years from now?).

And are conservatives really going to hang their hopes on:

John Roberts
Brett Kavanaugh
Neil Gorsuch
Amy Barrett

For the next 20 years?

[Michael P]

It's hilarious that you're asking whether justices will be on the court in five years when they're respectively 7 and 9 years younger than the guy you hope wins the presidency for that time period.

[F.D. Wolf]

Also decided this day, June 28, Clay v. United States, 403 U.S. 698 (1971), in which an 8-0 Supreme Court overturned the conviction of boxing great Muhammad Ali (aka Cassius Clay) for failure to submit himself for induction into the armed forces. I'm surprised this case does not make the list of an old hippie like captcrisis. (I affectionately kid).

Ali had applied for a conscientious objector exemption from the draft. To claim the status, an individual had to show, 1.) that he was opposed to ALL war (as opposed to a particular war); 2.) this belief was based on religious belief and training; and 3.) that this belief was sincere.

Ali's application was denied. He appealed to the State Appeals Board. His hearing officer recommended his application be granted, but the Appeals Board had sent a request to the Justice Department for advisory guidance, which had recommended the status be denied, so the Board denied the application. Ali was drafted, refused to appear for induction, and was tried and convicted for doing so. The Fifth Circuit affirmed the conviction.

According to Bob Woodward, in his book The Brethren, the initial vote in the Supreme Court was 5-3 to affirm the conviction. (Justice Marshall had recused himself because he had been the Solicitor General when the case had begun). The majority opinion was assigned to Justice Harlan, but when he was doing background research, Harlan changed his mind, becoming convinced that Ali was sincere and should be granted conscientious objector status. This left the Court deadlocked 4-4. Finally, Justice Stewart suggested a compromise in which the conviction would be overturned on the technical ground that the government had failed to inform Ali exactly which of the three prongs of the test he had failed. This would be what the Court would ultimately hold in its 8-0 per curiam opinion.

Ali, bomaye!

[Dan Schiavetta]

Thanks. I remember when Ali was stripped of his title and also I remember that case. I’ll add it for next time around.