Today in Supreme Court History: October 11, 1972

10/11/1972: Roe v. Wade argued.

The Burger Court (1972-1975)

Comments

[Dan Schiavetta]

Arlington County Board v. Richards, 434 U.S. 5 (decided October 11, 1977): community can restrict on-street parking to residents and their guests; “rational basis” survives Equal Protection attack (at first I got this confused with the Arlington zoning case from the same year, but this case didn’t seem to be about race; issue was avoiding congestion and pollution)

Ex parte Levitt, 302 U.S. 633 (decided October 11, 1937): someone sued to invalidate Hugo Black’s appointment to the Court on the basis that he was already a Senator (in violation of art. I, 6, clause 2) (I don’t know why anyone would argue this; he resigned as Senator the day he was confirmed); dismissed for lack of standing (does this mean nobody can contest a S.Ct. appointment?) (the opinion is “Per Curiam” and no note about Black recusing himself)

Oklahoma v. Texas, 272 U.S. 21 (decided October 11, 1926): original jurisdiction case; dispute over a chunk of land bigger than Rhode Island next to southwest corner of Oklahoma (not the panhandle) resolved by looking at the “true 100th meridian” where it intersects with the South Fork of the Red River, and not where bumbling surveyors had declared it to be, even if previously acquiesced in (look at modern map and you see the border wiggles to the south and north of the river, mostly south, to Oklahoma’s benefit; is this due to accretion/erosion?)

Thomas v. Lumpkin, 598 U.S. --- (decided October 11, 2022): Sotomayor dissents from denial of cert, arguing that convicted murder defendant (black man who killed his white wife and their two young children) made out case for ineffective assistance because counsel did not object to placing jurors who said that interracial marriage was against God's law (trigger warning here! -- defendant later took out both his eyeballs and ate one of them; Sotomayor, who admits the facts are “gruesome”, notes that he had allegedly cut out the children's hearts to remove the Devil); as of this writing, defendant is still on Death Row

[David Nieporent]

2) (I don’t know why anyone would argue this; he resigned as Senator the day he was confirmed);

Without bothering to look it up, presumably the issue was the first part of A1, S6, P2:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

[Dan Schiavetta]

ok thanks

[verochkax]

Speaking of Roe v. Wade, it looks like the 2022 elections were based solely on abortion. My guess without any evidence is that it's worn off, that most people will see that abortion isn't going anywhere in the 35 states or wherever that it's legal, so the polls will not overestimate Republicans like in 2022, but we'll see.

[ducksalad]

Pro-lifers and pro-choicers overestimate how much the rest of us care about it. Can't remember it ever being the deciding factor in my vote for any office in any election.

[Krayt]

You will believe what your betters order you to believe is your concern: abortion, or hateful Mexican drug importers and thieving Hatians with weird culinary tastes!

[verochkax]

I agree with that. It's not in my top 10%.

[verochkax]

Meant to say top 10 issues.

[Frank Drackman]

Do you like the US like it is now, or with 80,000,000 more Blacks?

[jb156]

Would you like your white robes and hood starched or unstarched?

[Frank Drackman]

wouldn't you like 80,000,000 more Hugo Blacks? or Jack Blacks? (OK, maybe just the Hugos) what did you think I was talking about?

Frank

[JoeFromtheBronx]

William Baude discussed the Black case.

https://chicagounbound.uchicago.edu/public_law_and_legal_theory/796/

He summarizes:

“Levitt had two complaints about Hugo Black’s appointment to the Supreme Court. The first and more prominent complaint was that Black’s appointment violated the Emoluments Clause, because of a Supreme Court pension that had been created during Black’s term in the Senate. The second complaint was that there was no proper vacancy in the first place, because Justice Van Devanter’s retirement did not create a vacancy that could be filled by Senator Black.”

The article notes that after the original challenge, litigants made two attempts (one in a case where he wrote the opinion, the case coming down 4-3). The challenges were denied without comment.

(After all, petitions for rehearing basically never work!)

[Dan Schiavetta]

The day before I retire, I want to make a motion for rehearing which begins, "This Court stupidly . . . "

[Krychek_2]

A former classmate of mine, on being fined for contempt of court, told the judge, "A $200 fine doesn't begin to express the contempt that I have for this court."

He is no longer practicing, though that was not the case that did it. Just didn't have the aptitude and temperament to be a trial lawyer.

[Dan Schiavetta]

Trying cases is a ritual with certain do's and don't's.

[JoeFromtheBronx]

October 11, 1972, was the day Roe was reargued.

The original argument (along with a companion case, Doe v. Bolton) was in front of a seven-person bench on 12/13/71.

Justice Blackmun originally wanted to make Doe v. Bolton (which involved a Georgia “reform” law with more moving parts) the main opinion. There is some logic to that approach.

Dorothy T. Beasley (who died in May 2024) argued for the state of Georgia. She was a repeat player in the Court, including arguing a death penalty case & had a very distinctive voice.

She later became a state judge.

[F.D. Wolf]

"Wade" was Henry Wade, District Attorney of Dallas County, Texas, a position he held from 1951 to 1988.

Wade would have been responsible for the prosecution of President Kennedy's assassin Lee Harvey Oswald had Oswald survived to see trial. (Killing the President would not be a federal crime until 1965.) Wade did conduct the trial of Jacob Rubenstein aka Jack Ruby, the man who killed Oswald. Ruby was convicted and sentenced to death, but that verdict was overturned by the unanimous Texas Court of Criminal Appeals (the highest state court in criminal cases). State v. Rubenstein, 407 S.W.2d 793 (Tex. Crim. App. 1966). The court held that Ruby's motion for a change of venue should have been granted and that his jailhouse confession should not have been admitted in evidence.

Ruby's new trial was scheduled for February 6, 1967, but he suffered a pulmonary embolism, dying on January 3 at Parkland Hospital in Dallas, the same hospital where President Kennedy and Oswald had died.

Henry Wade passed away on March 1, 2001.

[The Margrave of Azilia]

[morbid joke deleted]