Today in Supreme Court History: July 8, 1941

7/8/1941: Justice James Byrnes takes oath.

Justice James Byrnes

Comments

[Dan Schiavetta]

Secretary of the Navy v. Avrech, 418 U.S. 676 (decided July 8, 1974): soldier busted down to private for publishing a “disloyal” statement; Court refuses to hear case because service personnel do not enjoy full First Amendment rights (citing Parker v. Levy, 1974)

Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. --- (decided July 8, 2020): “ministerial exception” to First Amendment (as to teachers of religion) precludes age discrimination and disability discrimination lawsuits (I don’t know of any Catholic doctrine that says old people or disabled people can’t teach religion -- in fact the Church has long been happy to be guided by decrepit and disabled Popes)

Little Sisters of the Poor SS. Peter & Paul Home v. Pennsylvania, 591 U.S. 657 (decided July 8, 2020): upholding federal exemptions allowing religious institutions to opt out of Affordable Care Act’s contraceptive insurance coverage requirement even though not promulgated in accordance with Administrative Procedure Act

Wardlow v. Texas, 591 U.S. --- (decided July 8, 2020): denying stay of execution and rejecting psychiatrists’ opinion that youth of defendant prevented his full knowledge of crime; Wardlow (who at age 18 had killed someone during a burglary) was executed by lethal injection 28 minutes after decision came down

Sutherland v. Illinois, 418 U.S. 907 (decided July 8, 1974): refusing to review judgment that flag with peace symbol displayed on private property was protected by First Amendment; issue already decided in favor of flag bearer via Spence v. Washington, two weeks before (see June 26)

Farrell v. Iowa, 418 U.S. 907 (decided July 8, 1974): denying certiorari in case involving flag desecration as part of political speech (citing Spence)

Cahn v. Long Island Vietnam Moratorium Committee, 418 U.S. 906 (decided July 8, 1974): affirming decision vacating conviction for placing the “Peace Symbol” upon the Flag (citing Spence)

[Noscitur a sociis]

Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. — (decided July 8, 2020): “ministerial exception” to First Amendment (as to teachers of religion) precludes age discrimination and disability discrimination lawsuits (I don’t know of any Catholic doctrine that says old people or disabled people can’t teach religion — in fact the Church has long been happy to be guided by decrepit and disabled Popes)

The claim isn't that the church has a religious obligation to discriminate. It's that the government isn't allowed second-guess the church's decision about who its ministers should be (by, for instance, imposing liability on them for making the decision for a putatively improper reason).

[Dan Schiavetta]

True, but the word "minister" has been taken a long way. CCD teachers are not in any sense considered "ministers".

[Noscitur a sociis]

Wardlow v. Texas, 591 U.S. — (decided July 8, 2020): denying stay of execution and rejecting psychiatrists’ opinion that youth of defendant prevented his full knowledge of crime;

I don't think he was arguing that he didn't have full knowledge of the crime. Rather, his claim was that due to research in brain development, 18-20 year olds can't be sentenced to death out of concern for their potential for future dangerousness.

[Dan Schiavetta]

Yes, exactly.

[Dilan Esper]

Wardlow v. Texas, 591 U.S. — (decided July 8, 2020): denying stay of execution and rejecting psychiatrists’ opinion that youth of defendant prevented his full knowledge of crime; Wardlow (who at age 18 had killed someone during a burglary) was executed by lethal injection 28 minutes after decision came down

I am opposed to the death penalty categorically. Even if I put that aside, this is a compelling situation for not imposing the death penalty.

Nonetheless this is exactly what is wrong with the death penalty bar. I get WHY they are like this-- those last minute stays keep people alive. But still, a claim that the defendant was too young to understand the crime shouldn't be litigated on execution day. That's stupid. It's a stupid system. All the facts you need to litigate such a claim are readily available at the time of trial, and you can hire whatever experts or psychiatrists you need when you put together a habeas petition. It's the sort of thing the courts should take seriously, yes, but it's also the sort of thing that should be ruled on one way or the other well before the execution date.

The truth is most last minute DP litigation is like this. Yes, occasionally there is some very late breaking exculpatory evidence, and if there's a real claim of that, I get it. But when a claim so transparently could have been litigated much earlier, I don't really blame SCOTUS for refusing to stop an execution over it.

[Dan Schiavetta]

The problem is inherent in the death penalty itself. You can’t wrongly execute someone, even if the reason is not brought to your attention until five seconds before the switch is thrown.

[Dilan Esper]

I disagree. In fact I strongly disagree. The death penalty is not a waiver of any procedural rules. The Supreme Court has held that procedural default applies to the death penalty and it has to. Otherwise lawyers could literally come forward with the most BS claims 5 seconds before execution and a court would need to stop the execution and consider them every time.

The death penalty is a lawful punishment. And much as I don't like that it is, the fact that it is means it is subject to the same rules of party presentation, waiver, procedural deadlines, etc. as any other punishment. Bear in mind that it isn't as though only death is final-- when a defendant is imprisoned that's permanent too. They never get that time back either. Death is not different in that respect.

So no, it is absolutely a travesty that we have a situation where people are trying to litigate a claim that EASILY could have been litigated way back at trial and which has NOTHING to do with the Defendant's innocence 30 minutes before an execution. That stuff needs to stop.

[Noscitur a sociis]

^This.^

It is shocking how far capital defense has distorted the ordinary rules of advocacy. In fact, while I am a strong supporter of the death penalty, I'd happily support its (statutory) abolition if I thought that would fix the problem.

[Dilan Esper]

There's another thing that was common in California DP advocacy where there were a bunch of arguments that were absolutely frivolous. I mean, rejected in multiple California and US Supreme Court cases. Often unanimous. And every defense lawyer raised them anyway, so the Court had to reject them over and over again.

And what does that accomplish? Just because your client's getting executed doesn't mean you should waste a court's time with frivolous arguments. Make the arguments that actually matter. But again, DP advocacy is conducted as if the rules of party presentation, waiver, and colorable argumentation do not apply.

[SMP0328]

Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. — (decided July 8, 2020): “ministerial exception” to First Amendment (as to teachers of religion) precludes age discrimination and disability discrimination lawsuits (I don’t know of any Catholic doctrine that says old people or disabled people can’t teach religion — in fact the Church has long been happy to be guided by decrepit and disabled Popes)

It's not for government, even the courts, to say what is the correct interpretation of any religious doctrine. That's why the ministerial exception, based on the First Amendment's Religion Clauses, exists.

[Dan Schiavetta]

What makes the Catholic litigation so strange is that it is taking place in the context of gay marriage and contraception, and it is not really a question of government intruding into religion. The Church has suddenly regarded these issues as a bedrock of the Faith but an increasingly large majority of Catholics do not agree with the "official" position. Certainly not the Catholics who are employed in Church institutions and who care about nondiscrimination and health insurance. Even for the Catholics who don't have anything to lose, they roll their eyes when they hear about this litigation.

[JoeFromtheBronx]

The majority opinion says the school claims they dismissed her based on classroom performance.

A basic principle of the Catholic Church is respect for hierarchy. I think that is part of the issue here. It also isn't Johnny come lately.

They also don't want the government interfering with their decisions on who is best able to promote the faith. I understand that even if I think the dissent here has a point.

[JoeFromtheBronx]

The most notable opinion by James Byrnes in his short tenure is Edwards v. California, the “Okie” case that in part raised questions about the right to travel. The opinion had a New Deal feel about the duties of the states and overruled antebellum principles. Interesting concurrences.

Wardlow v. Texas. I’m looking at the petition. It raises questions of federal habeas procedure. He wasn’t just suddenly raising the age-related claim at the last minute.

(This is not a general comment on the overall “death penalty bar” or the system in place it has to travel in.)

As to Little Sisters, it is helpful to note that the PPACA applies to employers and employees generally. Certain drugs with contraceptive effects are used by all women, including in non-contraceptive ways. So, it is not hilarious, let’s say, that a nun might be concerned about these things.

Still, my go-to in those cases always was something like a cleaning lady or the daughter on the groundkeeper’s health insurance.

[Noscitur a sociis]

It raises questions of federal habeas procedure. He wasn’t just suddenly raising the age-related claim at the last minute.

I think you’re looking at a different petition. This is the case seeking direct review from the Texas Court of Criminal Appeals (19-8712), which presented one question:

Whether, under the Eighth and Fourteenth Amendments, Texas may continue to impose, and carry out previously imposed, death sentences for which future dangerousness is or was used to determine death eligibility for defendants who were under 21 years old at the time of the crime?

He did raise a lot of other issues in state court, but they do seem to 1. all be similarly meritless and 2. equally capable of having been raised long before the execution was scheduled.

[JoeFromtheBronx]

Yes, I was looking at a different petition.

Three orders were handed down on 7/8/2020.

19-8712
19-8835
19-8850

I am agnostic as to the strength of his claims.

[JoeFromtheBronx]

BTW, the first petition on the relevant docket page is June 10, 2020.

If the courts don't want it to end on the day of the execution, change the rules.

[JoeFromtheBronx]

For those who didn’t check, all three are for Wardlow, so I was looking at another claim settled that day.