Today in Supreme Court History: September 6, 1983

9/6/1983: The City of Richmond solicited bids for installing plumbing fixtures at the city jail. The J.A. Croson Company's bid was denied because it did not meet the "set-aside requirement" for minority contractors. The Supreme Court declared this decision unconstitutional in City of Richmond v. J.A. Croson Co. (1989).

The Rehnquist Court (1989)

Comments

[Mr. Bumble]

The way to stop discrimination is to stop discriminating.

[Malika the Maiz]

It’s like the anti-death penalty folks say, the only way to stop killing is to stop killing!

[Dan Schiavetta]

Shamburger v. Cockrell, 536 U.S. 986 (decided September 6, 2002): Denies stay of execution and also denies cert. Stevens and Ginsburg would grant the stay (probably because both had come to believe that the death penalty, as practiced, is always a violation of Due Process). Shamberger was executed by lethal injection five days later. A student at Texas A & M, he had shot another A & M student during an off-campus burglary. This was one of many burglaries he had committed. The gun was a 9mm pistol he had bought with a credit card he had already stolen from the victim (whom he had been stalking). He tied the victim up and gagged her with duct tape, and then shot her when he heard her roommate coming home. He confessed to the crime within hours after the attack and apologized to the family over and over, including on the day of execution. On appeal he had contested only the sentence (death as opposed to life imprisonment).

[Malika the Maiz]

Shamburger is the best name Ill likely come across today!

[Mr. Bumble]

...made with lab grown "meat".

[Malika]

Next thing you'll tell me is there's no ham in hamburger!

[apedad]

RE: City of Richmond v. J.A. Croson Co

The federal govt still has set asides to ensure small businesses get their fair share of work. Every federal government purchase between $10,000 and $250,000 is automatically set aside for small businesses, as long as there are at least two companies that can provide the product or service at a fair and reasonable price.

The groups that can use this program are:

Women-owned small businesses
Small disadvantaged businesses and 8(a) small businesses
Historically underutilized business zones small businesses
Service-disabled veteran-owned small businesses

https://www.gsa.gov/small-business/register-your-business/explore-business-models/setasides-and-special-interest-groups

[JoeFromtheBronx]

The final scheduled summer order list will drop later today.

John Roberts was nominated as Chief Justice OTD in 2005. When the new term opens, he will have served more days as Chief Justice than his old boss.

==

As to today’s daily cap, I question whether Stevens and Ginsburg reached that position as early as 2002. At any rate, they didn’t dissent in each case.

Stevens did announce that he reached that point in Baze v. Rees (2008) though that was a concurring opinion since:

“This Court has held that the death penalty is constitutional, and has established a framework for evaluating the constitutionality of particular methods of execution.”

Ginsburg joined Breyer’s dissenting opinion in Glossip v. Gross (2015) that assumed the death penalty was likely unconstitutional.

John Bessler aka Senator Amy Klobuchar's husband edited Justice Stephen Breyer's "Against the Death Penalty," which reprints the dissent and adds commentary.

[TextFirst]

This case deserves to be better known. The work is still in progress, but this is an important milestone in the government finally-- finally-- stopping discriminating on the basis of race. We'll drag the left into a racially neutral society kicking and screaming, but we'll get there.

[JoeFromtheBronx]

Justice O'Connor wrote the opinion for the Court.

She later supported affirmative action in colleges. She agreed that "diversity is a compelling interest that can justify the narrowly tailored use of race in selecting applicants for admission to public universities." (Grutter v. Bollinger)

Stevens agreed but in Croson concurred in part and in judgment, opposing the specific program. Justice Marshall dissented.

I welcome the overall concern about ending discrimination though wish there was more support for some of the hard choices we have to make to work toward that end.

[apedad]

The govt moved from using race to use economic status (see Small disadvantaged businesses and 8(a) small businesses and
Historically underutilized business zones small businesses I noted above).

That some (many?) racial minorities also fall into disadvantaged and/or underutilized categories is a happy coincidence (meaning they get the benefits of the programs, not that it's a good thing they're disadvantaged.)

[JoeFromtheBronx]

Yes. Round pegs fit in square holes though not as well.

[TextFirst]

"I welcome the overall concern about ending discrimination though wish there was more support for some of the hard choices we have to make to work toward that end."

What hard choices? The government stops discriminating on the basis of race. Fin.

[Malika]

Simple is as simple does, perhaps. Even in Adarand the majority said that race based remedies to proven prior discrimination ("pervasive, systematic, and obstinate discriminatory conduct") justified a narrowly tailored race based remedy.

[TextFirst]

Adarand stands for the proposition that the government can in some cases discriminate on the basis of race. To the extent that's still good, that doesn't mean we have to; we could simply stop discriminating on the basis of race. The choice to discriminate on the basis of a race is a policy choice and I, for one, am against it.

[JoeFromtheBronx]

The government continues to wrongly treat people in a fashion that denies equal protection based on race in various respects.

A system of laws that completely treats people equally is difficult to apply in the real world, especially to remove long-in-place inequalities.

I reference the text of the Equal Protection Clause. The word “discriminate” has a variety of meanings.

“Discriminating tastes” can be a positive thing. Anyway, the text does not say “discriminate,” especially if that means “treat differently in any fashion.” It says “equal protection,” which is a more nuanced thing. In practice and meaning, that can mean taking into consideration race in certain contexts.

Also, the EPC does not just apply to race, which is a reason to phrase things in a more general fashion.

If you think all race-based affirmative action plans violate the EPC (I do not), it would be a “hard choice” for certain jurisdictions to do that given their popularity and the work involved in upending established policies.

[Malika]

By this logic a university, police department, etc., could engage in pervasive, systematic, and obstinate discriminatory hiring conduct against a racial group and it would be wrong to order or engage in a race based remedy? All that can be done is to have racially neutral hiring going forward? The agency has already ‘stacked the deck’ in its favored group’s favor.

Think of it this way. If a university was shown to engage in pervasive, systematic, and obstinate discriminatory conduct against Jewish or conservative applicants, why is it wrong to have a limited, remedial effort to ‘make up’ for that by trying to bring some (or what would have been the amount absent the discriminatory efforts) Jewish or conservative faculty in?

[Bored Lawyer]

Off topic (but then again, this column is often off-topic).

Judge delays Donald Trump’s sentencing in hush money case until after November election

A judge agreed Friday to postpone Donald Trump’s sentencing in his hush money case until after the November election, granting him a hard-won reprieve as he navigates the aftermath of his criminal conviction and the homestretch of his presidential campaign.

Manhattan Judge Juan M. Merchan, who is also weighing a defense request to overturn the verdict on immunity grounds, delayed Trump’s sentencing until Nov. 26, several weeks after the final votes are cast in the presidential election.

https://www.aol.com/news/judge-delays-donald-trump-sentencing-171220395.html

[Malika]

I thought the judge "can't stand Donald Trump" and was "doing everything in his power" to get him...I guess that goes with the Willie Brown chopper ride, the video of the Arlington altercation, etc.. etc....

[Bored Lawyer]

I can't speak for what you thought. But your counter-straw-man arguments are silly.
Merchan has allowed things he should not have. At the same time, he does not want to look foolish to the Appellate Division.

[Mr. Bumble]

Has anyone told not guilty yet?

[Bob from Ohio]

He will need a wellness check.

The Jack Daniels will flow tonight at his house.

[SMP0328]

In light of Trump v. United States and Manhattan DA Alvin Bragg not opposing Trump’s request, Judge Merchan knew he would have been quickly reversed if he had refused to delay sentencing. Merchan simply saw the writing on the wall.

[Dan Schiavetta]

The trial judge is allowed wide discretion in scheduling matters; it’s very unlikely the App. Div. would reverse. More likely, he fears for his life if he sentences him before the election which results in a Trump loss.

[Mr. Bumble]

Sounding like Dr. Ed now. Fears for his life, indeed. Maybe his professional life. He is being sued by America First Legal to compel him to release his required annual financial disclosure.

[JoeFromtheBronx]

Trump rules require bending over backward to "dispel any suggestion that the Court will have issued any decision or imposed sentence either to give an advantage to, or to create a disadvantage for, any political party and/or any candidate for any office" etc.

https://electionlawblog.org/wp-content/uploads/People-v.-DJT-Letter-Adjournment-Dec-9-6-24.pdf

Normal rules don't apply here. I don't think he's doing it because he fears for his life. Either way, it is not likely to have much effect on the election. It is not like Trump would go to jail immediately even if he was sentenced to any jail time.

He's already guilty of 34 felonies. The sentence might have marginal effect. If possible, I rather it be applied now. But doubt it makes much difference.

[Malika]

The quotes are from Trump himself, you goose (though I concede it must be terribly hard to keep up with whatever deranged comments the dotard has made from day to day)!

[Kazinski]

I told you what I thought in Monday’s open thread:

“I am banking that we will never settle this completely because Merchan will blink, and either reschedule proceedings for after the election to preserve his temporary victory, or accept the inevitable and order a new trial.”

The Blink for the win.

[loki13]

I saw that, and it's definitely interesting.

I also saw that Trump was at the appeal for the E. Jean Carroll case. And ... he said the same stuff that has already gotten him nailed.

Seriously, at this point he really better hope that he wins the appeal (and not just on a reduction of damages), because if he doesn't he just opened himself to even more damages.

[loki13]

I know I was griping the other day about the lack of law-like substance here, and I'm still right about that, but I really enjoyed the choice of law post.

Pure legal issues are so much fun!

[Mr. Bumble]

To be fair I don't know why you would expect much from this post.
Josh (everybody's favorite whipping boy) recycles the same cases year after year and cap may throw in something else and that.s it. Very seldom does it have may comments on or off topic.

[loki13]

Oh, sorry. By "here" I meant the VC in general- I wasn't making a comment about this thread.

Actually, I think it's kind of nice that people use JB's daily Supreme Court post to chat. I was just popping in to say that I was able to actually scratch a law itch on the choice of law post, which I enjoyed. Choice (conflict) of law is pure law geekery.

It's certainly less heated than the normal stuff. No notes!

[Mr. Bumble]

Glad you had fun and found something for you and the boys to weigh-in on.

[loki13]

Thank you! Hope you're finding something that scratches your itch, too. 🙂

[Mr. Bumble]

Well, I do occasionally. I know it's end of day and don't know if you'll find this put what's the deal with an Alford plea? How did this become a thing? It seems to go against the whole idea of a guilty plea.

[loki13]

Well, Crim Law isn't my thing, but IIRC, it's based on a Supreme Court case. The specific facts were that a person (Alford) wanted to maintain his innocence, but plead to a lesser charge because he sought to avoid the death penalty.

The idea behind it is that a defendant should be allowed to enter that type of pleas when a defendant believes that he would be better off pleading guilty (lesser sentence) but maintains that they were innocent despite strong evidence.

In other words, it's basically a way of saying, "Yeah, we understand plea bargaining." It might seem to be a cop out in some ways, but evidence is still presented, it's still an acknowledgment of the evidence, and, to the extent it matters, it also ensures that we don't have people perjuring themselves when they accept a general guilty plea.