Today in Supreme Court History: August 22, 1998

8/22/1998: On August 22, 1998, Barry Black led a Ku Klux Klan rally in Carroll County, Virginia. The Supreme Court considered the constitutionality of his prosecution for cross burning in Virginia v. Black (20030.

The Rehnquist Court

Comments

[Martinned2]

Hang on, intimidating someone through speech can be criminalised without violating the first amendment? That can't be right, because I'm reliably informed that only Nazi's support speech restrictions.

[JoeFromtheBronx]

The justices did find the way Virginia addressed the issue was problematic.

[Dan Schiavetta]

California v. American Stores Co., 492 U.S. 1301 (decided August 22, 1989): O’Connor continues injunction preventing merger of supermarket chains which might violate Clayton Antitrust Act; notes circuit split as to whether “injunction” under statute includes divestiture as a remedy (the Court found that it did, 495 U.S. 271, 1990)

Matter of Lovett, 143 S.Ct. 69 (decided August 22, 2022): Jonathan Lovett of Somers, N.Y. (not far from where I am) suspended (and later disbarred); he did not oppose the notice of disbarment, nor did he oppose the disbarment proceedings in state court or even cooperate with the investigation (194 A.D.3d 39); however he is still listed on Yelp in case you’re thinking of hiring him (he had a well-documented career as a civil rights attorney)

[JoeFromtheBronx]

"Barry Black" is a somewhat ironic name for this guy.

The complicated nature of the case is shown by how many ways the justices split:

O'CONNOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III, in which REHNQUIST, C. J., and STEVENS, SCAIA, and BREYER, JJ., joined, and an opinion with respect to Parts IV and V, in which REHNQUIST, C. J., and STEVENS and BREYER, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 368. SCALIA, J., fied an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which THOMAS, J., joined as to Parts I and II, post, p. 368. SOUTER, J., filed an opinion concurring in
the judgment in part and dissenting in part, in which KENNEDY and GINSBURG, JJ., joined, post, p. 380. THOMAS, J., filed a dissenting opinion, post, p. 388.

Missed yesterday: failed judicial nominee Clement Haynsworth was nominated on 8/21/69.

[F.D. Wolf]

It used to be something of a running joke how O'Connor seemed to constantly produce these fractured opinions "with whom Justice X concurs as to Parts I, III, and V(a)(1)-(d)(6), excepting (d)(4); and Justice Y concurs as to Parts I(b)-(c), II(a) and (d), IV, except subpart...."

[JoeFromtheBronx]

She was in the center and was able to write pragmatic opinions that received a plurality in divisive cases.

People like Breyer, Rehnquist, Blackmun (who also wrote a lot of these sorts of things), and some other justice (maybe White) joined in while one or more justices didn’t want to go along all the way.

[Frank Drackman]

Pre-emptive Strike on the H8-ers, I’m not a KKK member (like former WVA Senator Robert KKK Bird, who Barry Hussein spoke glowingly of at his funeral) and “Frank” wasnt a really great name to have in Atlanta(see “Frank, Leo) or Amsterdam, but…………..
To be fair they consider it a “Cross Lighting”
Surprised we haven’t seen one at the DNC this week

Frank

[Michael Resanovic]

It annoys me that some supreme court justices assert the authority to vacate a state's judgment when the ruling depends on an overreading of federal law. They can't do that, as there was no federal right harmed in the first place, and nothing to vindicate in federal court.

SCOTUS has no authority the United States doesn't have. The United States has the authority to compel adherence to its law, not the authority to compel non-adherence. If X violates federal law, or federal authorities erroneously believe it does, state authorities are not to do it. But if the state believes in good faith that X is not law because it violates federal law, it doesn't matter what feds think, unless the state is somehow *violating* federal law by not doing X (or unless feds mistakenly think it does).

[ReaderY]

The United States has the authority, under the Supremacy Clause, to compel adherence to the Constitution of the United States. Moreover, the Supremacy Clause explicitly covers state judges. (“And the Judges in every State shall be bound thereby.”)

So it’s not the least surprising that the Constitution gives the US Supreme Court appelate autjority to review state court judgments on grounds they are contrary to the constitution.

It’s pretty obvious that a person convicted of a state crime that violates the federal constitution has a “federal right” that has been “harmed.”

Perhaps I’m not understanding your argument. Are you arguing against the overbreadth doctrine? That wasn’t at issue here. Mr. Black had a serious argument – one nearly half the court agreed with – that his conviction violated his personal rights, that the conduct he himself did could not be punished by the state. The Supreme Court was entitled to decide the question.

I don’t understand what you mean by the United States “compelling non-adherence” in this case. How in the world did the United States, or the Supreme Court, do this in Mr. Black’s case? The United States was not a party. And the State of Virginia certainly thought that the law it had convicted Mr. Black of violating “was law.”

[Michael Resanovic]

You misunderstood me, I wasn't clear who I was talking about. I agree with you re: Black.

I'm referring to O'Mara and Elliot, the other two parties charged. Virginia was going to let them go, SCOTUS concluded that further proceedings could be had against them. But by saying that they were vacating the judgment of VSC, they were purporting to order Virginia to keep trying to charge these people.

More generally, cases of the form State v Accused (as opposed to Accused v State, which are OK) shouldn't be in SCOTUS. If a state is ready to set someone free, that's that.