Today in Supreme Court History: July 6, 1835

7/6/1835: Chief Justice John Marshall dies.

Chief Justice John Marshall

 

Comments

[Dan Schiavetta]

South Dakota v. Opperman, 428 U.S. 364 (decided July 6, 1976): no warrant needed to search car impounded because illegally parked; cars are not “houses” (Fourth Amendment) and diminished expectation of privacy; marijuana found during permissible “inventory”

Chiafalo v. Washington, 591 U.S. 578 (decided July 6, 2020): a state can fine a “faithless elector” who does not vote according to the instructions laid down by the state legislature (State of Washington went for Hillary Clinton, but three of its electors voted for Colin Powell, hoping to sway Trump electors to do likewise and deny Trump a majority in the Electoral College; a total of seven electors were “faithless” that year)

Barr v. American Ass’n of Political Consultants, 591 U.S. — (decided July 6, 2020): debt collection exception to “do not call” law (ha!! what the hell happened to that??) did not violate First Amendment as favoring debt collection speech over still-prohibited political (robocall) speech (damn all robocalls to Hell)

Arizona Governing Comm’n for Tax Deferred Annuity Plans v. Norris, 463 U.S. 1073 (decided July 6, 1983): deferred compensation pension plan to state employees did not violate Title VII even though it helped men more (they greatly outnumbered female employees in the early years due to admitted discrimination) but would have to be even handed going forward

Michigan v. Long, 463 U.S. 1032 (decided July 6, 1983): “protective search” of car for weapons during investigative stop was reasonable under Fourth Amendment without warrant (driver, “under the influence”, wandering outside car when police arrived, saw “large hunting knife” on floor, something sticking out from under armrest, entered vehicle and found marijuana under it)

Barclay v. Florida, 463 U.S. 939 (decided July 6, 1983): trial judge finding of past record as “aggravating circumstance” justifying execution, improper under Florida law, not reviewable by Court because capital punishment is not unconstitutional under federal law

Cantor v. Detroit Edison Co., 428 U.S. 579 (decided July 6, 1976): antitrust immunity of State (Parker v. Brown, 1943) extends to private action directed by State (druggist selling light bulbs could not sue utility which provided free light bulbs as part of its approved rate structure)

Barefoot v. Estelle, 463 U.S. 880 (decided July 6, 1983): OK to admit psychiatric testimony as to possible future dangerousness when evaluating habeas corpus (the APA opposed such testimony and I can understand why; I used to work in a mental health department and we would hate having to fill out that part of the form — as the psych on our unit would say, “They think we have a crystal ball!” — because we’d get blamed if something went wrong — and the guy who ran the group home some of our clients lived in was the father of one of those killed by a Black Panther Leonard Bernstein had held a party for — look it up) (superseded by Antiterrorism and Effective Death Penalty Act of 1996)

California v. Ramos, 463 U.S. 993 (decided July 6, 1983): jury determining possible life sentence without possibility of parole can be given the “Briggs instruction” (mention that the governor can commute sentence to possibility of parole) even though it more likely results in without-parole sentence

Buffalo Forge Co. v. United Steelworkers, 428 U.S. 397 (decided July 6, 1976): federal court must defer to arbitrator on whether to enjoin a “sympathy strike” (steelworkers supporting clerical workers in same plant) (arbitrator was deciding whether the no-strike clause in steelworker contract had been violated) (in those days when one drove along Route 5 west of Buffalo one could see the fires of mile upon mile of steel plants; within 20 years they were all gone)

[Dilan Esper]

Michigan v. Long is a super important case but not for the reasons you state. It made much stricter the test for an "adequate and independent state ground" (which can prevent Supreme Court review, for example, if a state Supreme Court holds both that the police violated the Fourth Amendment and that the prosecution was outside the state statute of limitations, SCOTUS cannot review the Fourth Amendment issue because the limitations issue is an adequate and independent state ground for decision). The result of this was to expand SCOTUS' own jurisdiction over state appeals.

[Dan Schiavetta]

Thanks!

[SRG2]

Barclay was eventually resentenced to life imprisonment.

Rehnquist apparently never met a death sentence he didn’t approve of

[David Nieporent]

Chiafalo v. Washington, 591 U.S. 578 (decided July 6, 2020): a state can fine a “faithless elector” who does not vote according to the instructions laid down by the state legislature (State of Washington went for Hillary Clinton, but three of its electors voted for Colin Powell, hoping to sway Trump electors to do likewise and deny Trump a majority in the Electoral College; a total of seven electors were “faithless” that year)

Chiafalo had a companion case, Colorado Department of State v. Baca, which the court inexplicably didn't bother to provide any reasoned basis for, and just said, "See Chiafolo," even though the issues were different. Chiafolo, as you note, just said that faithless electors could be punished if they voted their consciences. But Colorado's law went beyond that, saying that electors couldn't vote their consciences at all, that if they tried they would automatically be removed and replaced and their votes retroactively nullified. (Washington has since changed its law to also remove faithless electors.)

While I have changed my mind on the concept of faithless electors — I now think it's a bad and unworkable concept in the modern era — I do not see how the Baca decision can possibly be correct as a matter of constitutional law. The constitution gives state legislatures the power to appoint electors (and to decide how). But the constitution gives the power to cast votes to the electors, not to the state legislatures. And even if one held that the power to appoint was inherently also the power to remove and replace, how would removing someone who has already cast his vote change that vote? There are no takebacks in voting.

[Dan Schiavetta]

Thanks.

How can you tell, if an elector is “faithless”, whether s/he is voting their conscience? Faithless is faithless. They don't have to declare why they're doing it.

[ReaderY]

The 17th Amendment says that the people of each state ahall be the electors for Senate. But if being an elector does not imply any actual decision-making power, and an elector can be ordered to vote as told or be punished or replaced, it would seem the 17th Amendment does not imply that ordinary citizens get any actual say in who the Senators are going to be. They merely go through a ceremonial ritual of casting pre-printed ballots to formally and ceremonially elect the pre-designated individual.

Chiafolo and Trump v Anderson together eviscerate the constitutional method of electing presidents, turning powers into ceremonial rituals. If the Supreme Court can take away electors’ and states’ rights that cavalierly, a future Supreme Court can with equal justification take away the people’s textual rights.

[David Nieporent]

The 17th Amendment says that the people of each state ahall be the electors for Senate. But if being an elector does not imply any actual decision-making power, and an elector can be ordered to vote as told or be punished or replaced, it would seem the 17th Amendment does not imply that ordinary citizens get any actual say in who the Senators are going to be.

You're being autistic again, and wrong to boot. The 17th amendment does not in fact say that the people of each state shall be the electors for senate, although it does use that term to describe them at one point. It says "The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof."

[Noscitur a sociis]

Barr v. American Ass’n of Political Consultants, 591 U.S. — (decided July 6, 2020): debt collection exception to “do not call” law (ha!! what the hell happened to that??) did not violate First Amendment as favoring debt collection speech over still-prohibited political (robocall) speech (damn all robocalls to Hell)

Although there’s no majority opinion, the court clearly held that the exception did violate the first amendment. The notable thing is that rather than grant the relief the plaintiffs wanted (getting rid of the whole restriction), the court instead said the exception was invalid, and instead the restriction had to be applied to everyone.

[The Margrave of Azilia]

I don't think the Justices wanted to unleash a bunch of robocallers on the country. Not when they could gain points by banning even *more* robocallers.

[Dan Schiavetta]

Thanks! Will correct.

[The Margrave of Azilia]

After thinking about faithless electors (no quote marks), I came to these conclusions:

The regular voters are also electors. They are electors of the electors under the laws of the states (though a state could take that power away from voters – politically difficult to say the least).

If regular voters choose electors based on the electors’ solemn pledge to support X for President (and Y for Vice-President), then it undermines the rights of the regular voters for the electors to break that promise, and I’d say the remedy would be to put the faithless electors in a dark dungeon “where the inmates pay spiders for sex” (h/t Dave Barry from another context).

Unpledged electors would of course by definition be free to vote for whom they please. Unpledged electors are of course vanishingly rare, but if the voters elect them as unpledged, so be it.

[David Nieporent]

The states that do ban faithless electors require them to sign such pledges as conditions of being electors.

[JoeFromtheBronx]

Chiafalo v. Washington underlines the fiction of the Trump v. Anderson (insurrection case).

The Anderson case was largely motivated by the fear that state-by-state determinations of ballot ineligibility would cause problems. There needs to be a singular congressional regulation.

Chiafalo reminds us that states have broad power over elections, including regulating electors. They can bind electors. They can decide not to bind them. They can use winner-take-all.

Or district by district. Or the state legislature can pick. etc. This can affect the results. Imagine if Florida in 2000 spit their electoral vote proportionally.

[a critic of the opinion, Gerard Magliocca, argued that 14A, sec. 2 might require a state to apportion electors by popular vote or have their congressional delegation reduced]

There is an argument that Section 5 provides the clincher: Congress has the power to enforce the amendment.

But, as the liberal concurrence reminds us, the same provision covers the whole amendment, as well as others, such as the 13th Amendment. Slavery was abolished when the 13A was ratified.

It didn’t take congressional enforcement. Likewise, states have the power to enforce the amendment too as long as it does not conflict with supreme congressional law on the subject. Ditto due process, equal protection, and other provisions of the 14A.

The word "sole" is not present in the enforcement provisions.

==

The death of John Marshall was celebrated by many conservatives of the day. His nationalist approach clashed with their vision of the Constitution. One strong opponent was his distant cousin, Thomas Jefferson.

Today’s conservatives follow in the spirit of these opponents in various cases, including following a watered-down version of McCulloch v. Maryland and other Marshall opinions.

[ReaderY]

But doesn’t individual by individual determination cause even more problems? You canmt even know whose going to be electrd in advance! No uniformity, no predictablility. A terrible way to select leaders if uniformity and predictability is the goal.

If every Joe Schmoe citizen gets to have their own view of who is qualified to be President, there could be millions of different opinions. If having 50 states each having their own opinion on Presidential qualifications causes problems, imagine the catastrophic chaos that would happen if individual people were allowed to be involved.

[David Nieporent]

Are you doing that thing where you pretend that voters are determining who's qualified rather than determining who they want to be president?

[JoeFromtheBronx]

Michigan v. Long, as noted above, had significant effects regarding the power of the Supreme Court & resulting federalism implications.

Justice John Paul Stevens was a strong critic of such reaching out to decide. He addressed the issue in multiple separate writings. He in part reminded people that originally the Supreme Court had more limited jurisdiction than it has today.

As people consider if our current Supreme Court warrants reforms, it is something to keep in mind.

[Michael Resanovic]

Well said: Michigan v Long was an advisory opinion, as are all of that type.

This is because the United States, as a (limited) sovereign, has no authority to make a state enforce its own laws. There is therefore no officer or institution of the United States that can make a state (or any officer thereof) do so; SCOTUS can't have a power the US lacks, as its powers are a subset of national authority.

[NvEric]

South Dakota v. Opperman .... bad call. Expectations of privacy must increase the more crowded life becomes.

Is not the increase in pervasive and largely unawares monitoring, without consent or notice, an obstacle to civil society ? Yea, it might come in handy to solve or stop some crime, but at what cost ?

One's vehicle is part of one's castle. Molesting or stealing a horse was a serious crime long ago, so with our modern version, the car, being a virtual necessity, it must be not be transgressed without absolute necessary reason(s). A person can not be searched for no cause and by extension, neither must their 'things' simply because it's in a public place.

Moreover, a civil society should allow one's person to be private while in public. The reasoning for this is to our right of innocent passage, right to travel, right to be anonymous.

O.B.I.T. is almost a reality.