Today in Supreme Court History: November 17, 1880

11/17/1880: The United States and China sign treaty that protects Chinese laborers residing in the United States. This treaty was implicated in Yick Wo v. Hopkins (1886).

 

Comments

[JoeFromtheBronx]

Stone v. Graham was handed down on November 17, 1980.

The Supreme Court in a short per curiam struck down a Kentucky law requiring the posting of the Ten Commandments on the wall of every public school classroom in the state.

No secular purpose.

Burger and Blackmun would have taken the case for full consideration. Stewart and Rehnquist dissented.

A federal judge recently held an LA law requiring the posting of the Ten Commandments in each classroom unconstitutional in a 177-page decision. I find these extra-long opinions a tad absurd though it does have a helpful table of contents. Also, I do find the alternative options (p. 63 and so on) somewhat amusing.

https://religionclause.blogspot.com/2024/11/louisiana-federal-court-enjoins.html

Many assume that the current Supreme Court would uphold such a law. As the state, per the district court opinion argues, Stone v. Graham “is dead.”*

It’s not that bad of a bet. The bottom line would be if five justices thought the public school context and direct state endorsement [allegedly not present in the praying coach case] warranted upholding the precedent.

I think Roberts and Kavanaugh might. But I’m not going to bet my non-existent farm on it. State endorsement of a sectarian posting of one set of commandments over the others is unconstitutional.

For what it is worth.

==

* It added in a portion of the brief not cited:

“It has ceased to be. It’s expired and gone to meet its maker. This is a late precedent. It’s a stiff. Bereft of life, it rests in peace. If you hadn’t nailed it to the perch, it would be pushing up the daisies. It’s rung down the curtain and joined the choir invisible. This is an ex-precedent.”

[John F. Carr]

The Fifth Circuit has stayed some of the judge's order. If I parse the documents correctly it granted this request by the state:

Although Plaintiffs did not request a universal injunction, the district court acquiesced in Plaintiffs’ request that the court commandeer Superintendent Brumley and BESE to “provide notice” to non-party schools regarding the district court’s opinion that H.B. 71 is unconstitutional. The district court, of course, cannot enjoin such non-parties from implementing H.B. 71—although, again, the district court summarily proclaimed that “the Act cannot be enforced throughout the state.” So, the district court instead announced that Superintendent Brumley and BESE “certainly will be ordered to provide notice to all schools that the Act has been found unconstitutional.”
To be clear: Plaintiffs have nothing to do with these non-party schools, and they have nothing to gain from this notice. Rather, the only apparent purpose of the Notice Provision is to impose an in terrorem effect on non-party schools by scaring them—in the State’s voice—into complying with an injunction that cannot legally bind them.
With all due respect to the district court, the Notice Provision is blatantly unlawful—and it is exactly the sort of conduct that the Supreme Court rejected in Labrador v. Poe, 144 S. Ct. 921 (2024) (granting stay of statewide injunction “except as to the provision to the plaintiffs of the treatments they sought below” (emphasis added)).
[...]
For these reasons, the Court should immediately enter an
administrative stay of the Notice Provision pending the Court’s
disposition of the State’s forthcoming motion for stay pending appeal (to be filed no later than Friday, November 15).

The forthcoming motion is now filed. See
https://www.courtlistener.com/docket/69369985/roake-v-brumley/

I don't know if there are five votes on the Supreme Court to allow the Louisiana law to be enforced. A conservative panel of the Fifth Circuit might uphold the law by finding an excuse to distinguish Stone v. Graham, and then the case need not go to the Supreme Court.

[SRG2]

"Rehnquist dissented."

Of course he did. He joined Scalia in dissenting in Edwards v Aguillard as well. Never question Rehnquist's devotion to the Good Book ahead of reason and the Constitution.

[Dan Schiavetta]

Dennis v. Sparks, 449 U.S. 24 (decided November 17, 1980): private parties who allegedly corruptly conspired with judge to deny oil lease in violation of Due Process can still be sued under §1983 even though co-conspirator judge enjoys judicial immunity (echoes of the Watergate convictions, with Nixon as an unindicted co-conspirator)

Crouch v. United States, 266 U.S. 180 (decided November 17, 1924): Navy war widow (husband had been on The Cyclops, which disappeared at sea in March 1918) can’t sue for restoration of statutory insurance benefits (they had been stopped due to her “misconduct”, not described in the opinion); United States had not waived sovereign immunity

Toucey v. New York Life Ins. Co., 314 U.S. 118 (decided November 17, 1941): Plaintiff’s assignee attempted to litigate a claim in state court that plaintiff had already lost on in federal court. Court dissolves Circuit Court stay, holding that it is up to the state court to decide the res judicata issue without federal court interference. In dissent Justice Reed argues that the Anti-Injunction Act, 28 U.S.C. §2283 (restricting federal courts from staying state court proceedings) was not meant to leave federal courts powerless to protect their own judgments. In 1948 the Act was amended in accordance with his position.

Morrissey v. Perry, 137 U.S. 157 (decided November 17, 1890): statute prohibiting enlistment under the age of 18 did not void legal obligation of soldier who enlisted at age 17 (lying about his age), deserted, then reappeared at age 21 and demanded his freedom; statute was for the benefit of parents and guardians in aid of custody and control of their children

[Jerry B.]

Could Morrissey v. Perry be a cite in any case concerning schools not informing parents of their child's request to be identified as another gender?

[JoeFromtheBronx]

The opinion notes that the law had the purpose of protecting the “control of parent or guardian over his or her child without consent” concerning military enlistment.

A parent by law gives up control to a school regarding the education of their children. A school is not required to notify parents about everything the student talks about.

(The control given up is not absolute though historically it is if anything more complete than it is today.)

To the extent that the opinion noted that the military had special aspects that limited the control of the parent and child, the school might benefit.

[John F. Carr]

“An enlistment is not a contract only, but effects a change of status. It is not, therefore, like an ordinary contract, voidable by the infant.” In re Morrissey, Petitioner, 137 U.S. 157, 159 (1890)

[F.D. Wolf]

“The plaintiff, Kathleen Konstovich, at the time of the termination of her insurance and during the year 1920, at the time of her illicit intercourse with Samuel S. Spragg, bore a bad reputation for chastity and morality, and was suspected of immoral conduct by sundry persons.”

As a conclusion of law from these facts the District Judge found that Kathleen Konstovich “has violated the provisions of the War Risk Insurance Act by her open and notorious illicit cohabitation, and terminated her right to war risk insurance as of September 17, 1920.” By writ of error to this court plaintiff sought a review of the conclusion of law that the facts found constituted open and notorious illicit cohabitation. By consent of counsel this court transferred the case to the Supreme Court as one which should have been taken there. The Supreme Court held the jurisdiction to review the challenged judgment was in this court and returned the case, with directions to this court to proceed.

Crouch v. United States, 8 F.2d 435 (4th Cir. 1925)

The Navy widow Mrs. Konstovich (through her guardian Crouch) sued for her insurance payments in district court, which summarily ruled against her. She appealed to the circuit court, which, as noted, transferred the appeal to the Supreme Court, which held in the instant case that the appeal should have been heard in the circuit court and sent it back. The circuit court reversed the district court and remanded the case. This time, Konstovich won her case before a jury. United States v. Konstovich, 17 F.2d 84 (4th Cir. 1927).

[Dan Schiavetta]

Thanks!

[ReaderY]

Various state courts with “open and notorious” fornication and adultery statutes construed their statutes in the 1970s with quite varying results. For example, the Supreme Court of Illinois held that the people of the area generally had to know about it, so as long as the couple kept their affair reasonably secret they were OK. The Supreme Court of Virginia, however, basically construed it as saying that the couple had to have engaged in sex in public, making it a kind of aggravated indecent exposure statute.

In “open and notorious” states in general, however, the gravaman of the crime is not the act itself. It is the punlic findijg out about it.

[Dan Schiavetta]

IOW, it has to be an “open secret” -- everyone knows about it but no one talks about it.