Today in Supreme Court History: November 30, 1981

11/30/1981: Harlow v. Fitzgerald argued.

The Burger Court (1981)

Comments

[Dan Schiavetta]

Porter v. McCollum, 558 U.S. 30 (decided November 30, 2009): ineffective assistance of counsel where mental health effects of combat experience were not presented at competency and mitigation hearings

California v. Mitchell Bros. Santa Ana Theater, 454 U.S. 90 (decided November 30, 1981): “beyond reasonable doubt” can be the state law standard of proof in a civil enforcement action as to obscenity (here, showing pornographic films) but Due Process does not require it

Hoeper v. Tax Commission of Wisconsin, 284 U.S. 206 (decided November 30, 1931): struck down statute combining wife’s income with husband’s for determining his income tax; reviewing historical change in legal status of women, Court notes that she is independent agent with sole control over her income

[Malika the Maiz]

From the opinion in Mitchell Bros.: During the obscenity and public nuisance phase of the trial, the jury viewed 17 films at the defendants' theater.

Quite the jury duty.

[Dan Schiavetta]

Mitchell Brothers ran a very explicit live sex theater in San Francisco. (So I’ve heard.) I went there once around 1990 when I was in law school not far away. (So I’ve heard.)

BTW, as “captcrisis” I wrote a great deal about my personal life, much of it TMI, largely in the process of writing movie reviews in the summer of 2023. All of it was true, though details were sometimes changed “to protect the innocent”.

[Noscitur a sociis]

Same for me! Everything I write here is true, except for the stuff that isn’t.

[JoeFromtheBronx]

The Mitchell Brothers' life was dramatized in the movie Rated X starring real-life brothers Charlie Sheen and Emilio Estevez as Artie and Jim, with Estevez directing. With one Mitchell brother eventually killing the other, there was a lot of stuff to dramatize.

https://en.wikipedia.org/wiki/Mitchell_brothers

The brothers among other things "discovered" the famous porn actress Marilyn Chambers. Her one 'straight' film was the horror film Rabid. It's pretty good.

[Dan Schiavetta]

Were they f**ked up because they were in porn, or were they in porn because they were f**ked up? That was always the question.

[SRG2]

FWIW I recall a barrister friend of mine in England who only acted for defendants, who said that the best jury in an obscenity trial consisted of middle-aged working-class women with grown kids, because they were unshockable and had seen everything.

[JoeFromtheBronx]

Harlow v. Fitzgerald ...

JUSTICE BRENNAN, JUSTICE WHITE, JUSTICE MARSHALL, and JUSTICE BLACKMUN, concurring.

We join the Court's opinion but, having dissented in Nixon v. Fitzgerald, ante p. 457 U. S. 731, we disassociate ourselves from any implication in the Court's opinion in the present case that Nixon v. Fitzgerald was correctly decided.

They were correct to do so. At least that case didn't go as far as the truly asinine Trump v. U.S..

==

An Order List on 11/30/15 allotted argument time in Friedrichs v. California Teachers Association involving union fees.

It was assumed likely that the end result would have been a 5-4 opinion with the conservatives coming out on top. However, Justice Scalia died after oral argument. The end result was an affirmance by an equally divided court.

Overturning Abood v. Detroit Board of Education would wait until another justice.

https://www.oyez.org/cases/2017/16-1466

[jdgalt1]

That is a rule I've never understood. If a justice was alive throughout a trial and writes or joins an opinion, and then dies, I see no reason why his contributions can't be left in.

[JoeFromtheBronx]

Only members of the Supreme Court take part in decisions. That is a normal rule for various types of organizations. Existing members take part when the organization acts.

When the opinion was released, there were eight members. If Scalia resigned, he also would no longer have been part of the Court. He would not take part in its decisions.

A member who left surely would not be the tiebreaker if the other justices tied 4-4. As to other "contributions," Scalia was no longer on the Court. Non-members do not get to write opinions.

If a departed member wrote an opinion, some reference can be made about how they were responsible for the opinion, but it is no longer their opinion officially. They aren't on the Court. The remaining members are responsible for handing it down.

The other response cites a case when this came up. In another came, Justice Fortas wrote an opinion & he left the Court. The opinion was released as an unsigned per curiam.

[Noscitur a sociis]

See the discussion in Yovino v. Rizo, 586 U.S. —- (2019):

The Ninth Circuit did not expressly explain why it concluded that it could count Judge Reinhardt’s opinion as “[t]he majority opinion” even though it was not endorsed by a majority of the living judges at the time of issuance, but the justification suggested by the footnote noted above is that the votes and opinions in the en banc case were inalterably fixed at least 12 days prior to the date on which the decision was “filed,” entered on the docket, and released to the public. This justification is inconsistent with well-established judicial practice, federal statutory law, and judicial precedent.

As for judicial practice, we are not aware of any rule or decision of the Ninth Circuit that renders judges’ votes and opinions immutable at some point in time prior to their public release. And it is generally understood that a judge may change his or her position up to the very moment when a decision is released.

…

Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.

[Syd Henderson]

I note that the petioners in this case were Harlow and Alexander Butterfield. The latter name is a blast from the past since he was the man who revealed the existence of the taping system in the White House. Although Butterfield wasn't involved in the Watergate break-in or cover-up, he played a role in the fall of Richard Nixon.

John Dean also mentioned the taping of conversations, but Butterfield knew more details and may have mentioned it before Dean.

In this case Harlow and Butterfield were decided to have qualified immunity but not absolute immunity. Fitzgerald was fired for revealing cost overruns on an airplane, which seems to me to be a public service.

[Mr. Bumble]

Butterfield is still alive (age 98).

[John F. Carr]

So is John Dean. His post-Watergate career is telling people that the latest scandal is worse than Watergate.

[JoeFromtheBronx]

Butterfield gave a TV interview a couple of years ago and seemed to be pretty sprightly.

https://www.youtube.com/watch?v=c52oIe3Gj6w

[not guilty]

Qualified immunity for damages actions under 42 U.S.C. § 1983 was first recognized in Pierson v. Ray, 386 U.S. 547, 557 (1967), and was expanded considerably in Harlow v. Fitzgerald, 457 U.S. 800 (1982), and its progeny.

Congress should abolish this defense or considerably curtail its availability.

[John F. Carr]

I think the right approach is to limit qualified immunity to situations where everybody thought the act was legal but the courts changed their minds. Approximately the Bouie v. City of Columbia standard (newly expanded definition of criminal trespass did not apply retroactively).

[not guilty]

"I think the right approach is to limit qualified immunity to situations where everybody thought the act was legal but the courts changed their minds."

That was essentially the facts whereby qualified immunity was initially recognized in Pierson v. Ray. Police officers in Mississippi made arrests in 1961 pursuant to a state statute that SCOTUS in 1965 held to be unconstitutional as applied to similar facts. The Supreme Court, however, did not order dismissal of the § 1983 claim, but ordered a new trial at which the officers could assert the defense of good faith and probable cause. 386 U.S. at 557.

[SRG2]

Or in heat-of-the-moment decisions, unlike all those lengthy QI cases where for example a prisoner was untreated for months.