Today in Supreme Court History: October 31, 1963

10/31/1963: Cleveland Police Detective patted down, and arrested John W. Terry.

The Warren Court (1962-1965)

Comments

[JoeFromtheBronx]

Happy Halloween.

Prof. Segall says that one of the best costumes is the Supreme Court pretending to be a court.

Justice Scalia in Lamb’s Chapel v Ctr Moriches Union Free School District had some dismissive words concerning the “Lemon Test” previously used to determine Establishment Clause violations:

“Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District.”

Justice White, no big fan of the test, replied:

“While we are somewhat diverted by Justice Scalia’s evening at the cinema, we return to the reality that there is a proper way to inter an established decision and Lemon, however frightening it might be to some, has not been overruled. This case, like Corporation of Presiding Bishop of Church of Jesus Christ of Latter day Saints v. Amos, presents no occasion to do so. Justice Scalia apparently was less haunted by the ghosts of the living when he joined the opinion of the Court in that case.”

Kennedy v. Bremerton School District appeared to inter the test for good. However, as Michael Myers can tell you, you never know.

[SMP0328]

Kennedy v. Bremerton School District appeared to inter the test for good. However, as Michael Myers can tell you, you never know.

The spirit of Alton Lemon still roams the halls of the Supreme Court, looking for an opportunity to once again take possession of the Establishment Clause.

[Dan Schiavetta]

That's the point. With Lemon gone, there's nothing stopping Christianity becoming the all-but-official religion of this country, demanding deference, obeisance, and largesse, so long as they're careful not to actually call it "official".

[SRG2]

I have noted elsewhere (SRGspeak for “Posted it on Facebook”) that post Kennedy lawyers on the Christian Right will be going through every prior case that used the Lemon test to devise strategies – or, indeed, fictitious cases – to counter them. So more public posting of the Ten Commandments (cf Glassroth v Moore – though that never made it beyond the appellate court), teaching of Creationism (or its renamed “Intelligent Design”) kicking out Edwards v Aguillard and the inferior court case of Kitzmiller v Dover, etc.

(FWIW if I am ever minded to write a legal work, it would be on the history of evolution cases in the US, with special ire reserved for the dissent in Edwards, and special praise for Overton - in McLean v Arkansas - and Jones in Kitzmiller.)

[SMP0328]

Stone v. Graham (1980), striking down TC displays in schools, is probably toast. The big test will be when the Court decides the fate of Engle v. Vitale (1962), barring school-sponsored prayer in the classroom, and Abington School District v. Schempp (1963), striking down teacher-led Bible readings in the classroom. That test will come down to Roberts, Kavanaugh, and Barrett.

[SRG2]

Given that Gorsuch was prepared to lie by, in effect, describing the 50 yard line as a private space, who knows what trick they'll use in some of these cases.

[The Margrave of Azilia]

Putting 10 Commandments monuments on courthouses is out of date. Now it’s time for courthouses to display unifying, nonsectarian symbols like Pride flags. See this article from last year:

https://patch.com/pennsylvania/media/pride-flag-flying-delaware-county-courthouse-through-end-june

[Frank Drackman]

Amazing! Even Thoroughly Bad Marshall and Impeach Earl Warren got it right.

[Dan Schiavetta]

General Atomic Co. v. Felter, 434 U.S. 12 (decided October 31, 1977): state court can’t enjoin litigants from filing actions in federal court

Kane v. Garcia Espitia, 546 U.S. 9 (decided October 31, 2005): Does the right to self-representation require a pro se defendant to have access to the prison law library? Because the Supreme Court had not ruled on the issue, the Circuit Court erred in holding that the “clearly established federal law” requirement for habeas relief applied (but the Court here refuses to rule on the issue! -- and remands for “further proceedings consistent with this opinion” -- ???)

Louisiana v. Mississippi, 516 U.S. 22 (decided October 31, 1995): in this original jurisdiction case, Court holds that Stack Island is still in Mississippi even though main channel of the Mississippi River now runs on the Mississippi side of it and accretion plus erosion has shifted the island toward Louisiana (applies the “island exception to the rule of thalweg” which serves to prevent change of jurisdiction over the island) (a thalweg is a zigzag line tracing the deepest points of a river bed as one goes downstream; it is often used to define a border) (Stack Island was, according to Wikipedia, “a rendezvous for horse thieves, counterfeiters, robbers and murders” until the New Madrid earthquakes of 1811 - 1812 reduced it to a sand bar)

Weidrick v. Biden, 143 S.Ct. 368 (decided October 31, 2022): Court lacks a quorum, seven of the Justices having been named as defendants in this pro se suit alleging “mind-raping” of plaintiff by computer, terrorist acts, etc., see District Court’s order of dismissal of suit as frivolous, 2022 WL 3215590; only Kagan and Gorsuch appear to be innocent of these foul (ghoulish?) acts (unsigned decision cites 28 U.S.C. §1, which requires quorum of six Justices, and 28 U.S.C. §2109, under which without a quorum the Court’s disposition is equivalent to an affirmance due to an evenly split Court)

[apedad]

Was Stack Island (a rendezvous for horse thieves, counterfeiters, robbers and murderers), the place where Hedley Lamarr got his rustlers, cut throats, murderers, bounty hunters, desperados, mugs, pugs, thugs, nitwits, halfwits, dimwits, vipers, snipers, con men, Indian agents, Mexican bandits, muggers, buggerers, bushwhackers, hornswogglers, horse thieves, bull dykes, train robbers, bank robbers, ass-kickers, shit-kickers and Methodists?

[Dan Schiavetta]

"Think of your secretary!" Whereupon the nearly-blind Governor finds the holder for his pen.

[Krayt]

Hornswogglers are a kind of fraud. And also apparently one of the things that preyed on poor Oompa Loompas in Oompa Loompa Land.

[The Margrave of Azilia]

IIRC, when asked if Blazing Saddles could be made today, Mel Brooks said "it couldn't be made *then.*"

[Michael Resanovic]

*Illegally stopped, and patted down

No Ohio law did (or does) authorize investigatory stops