Today in Supreme Court History: January 7, 1972

1/7/1972: Justices Lewis F. Powell and William H. Rehnquist take oaths.

The Burger Court (1972-1975)

 

Comments

[Dan Schiavetta]

Marsh v. Alabama, 326 U.S. 501 (decided January 7, 1946): Alabama statute requiring people to leave private property when asked violates First Amendment (and Fourteenth Amendment) when property is open to the public (this was a Jehovah’s Witness on the sidewalk of a “company town”)

Tucker v. Texas, 326 U.S. 517 (decided January 7, 1946): companion case to the above, another Jehovah’s Witness, this time booted from a government-owned housing area (a clearer case of 1A/14A violation, if you ask me)

City of Escondido v. Emmons, 586 U.S. 38 (decided January 7, 2019): in this handcuffed-by-police §1983 claim, the Circuit Court’s brief statement that “excessive force” is “clearly established” was inadequate to support its conclusion that there was no qualified immunity; remanded for correct inquiry which is whether officer’s conduct violated clearly established “statutory or Constitutional rights”

Wright v. Van Patten, 552 U.S. 120 (decided January 7, 2008): right to counsel not violated when attorney appeared at plea hearing via speaker phone (which is actually more effective than personal appearance or Zoom, if your position is very weak: you don’t have to strain to keep a straight face, just make sure there’s no giggle in your voice)

Susquehanna Boom Co. v. West Branch Boom Co., 110 U.S. 57 (decided January 7, 1884): battle of the booms (to control timber floating downriver; they interfered with each other); federal court jurisdiction cannot be created by federal issue concocted after state court appellate process is exhausted (belated argument was that Pennsylvania’s grant to second boom company interfered with the contract of the first, in violation of Contracts Clause)

[Commenter_XY]

That Marsh case sounds interesting. A property owner cannot tell someone to leave their property?

[apedad]

It's more nuanced than what we think of as "private property."

Facts of the case

Grace Marsh, a Jehovah's Witness, attempted to distribute religious literature on the sidewalk near a post office in Chickasaw, Alabama. The Gulf Shipbuilding Corporation owned Chickasaw, Alabama in its entirety as a company town. Marsh was convicted of criminal trespass. Appealing her conviction, Marsh argued that the state law violated the First Amendment.

Question

Did Alabama violate Marsh's rights under the First and Fourteenth amendments by refusing to allow her to distribute religious material in the privately owned town of Chickasaw?

Conclusion (6 - 3)

In an opinion by Justice Hugo L. Black, the majority ruled in Marsh’s favor. The Court reasoned that a company town does not have the same rights as a private homeowner in preventing unwanted religious expression. While the town was owned by a private entity, it was open for use by the public, who are entitled to the freedoms of speech and religion. The Court employed a balancing test, weighing Chickasaw’s private property rights against Marsh’s right to free speech. The Court stressed that conflicts between property rights and constitutional rights should typically be resolved in favor of the latter. (oyez)

[Dan Schiavetta]

Thanks

[David Nieporent]

A lot of people have chosen to interpret Marsh in the current era as applying to social media companies on the grounds that they are effectively town squares. But SCOTUS has never said anything like that; what it has said is that only functions that are actually the functions traditionally undertaken by government count. Operating streets and sidewalks? Yes. Operating electronic bulletin boards? No. (See, e.g., Manhattan Community Access Corp. v. Halleck.)

[Dan Schiavetta]

I suppose that includes town criers. Tradition, y’know. Living Constitution.

[ducksalad]

Of course IANAL but to me the post office ought to be the key fact.

Once the private owner leases space to a post office, it's a post office, not just a public space but a government space, and people should be entitled to do all the things associated with a post office, including traveling to and from it, and standing on the sidewalk protesting. Even if it weren't a constitutional issue it should have been a lease condition.

[Noscitur a sociis]

Once the private owner leases space to a post office, it's a post office, not just a public space but a government space, and people should be entitled to do all the things associated with a post office, including traveling to and from it, and standing on the sidewalk protesting. Even if it weren't a constitutional issue it should have been a lease condition.

1. When the government rents property, why should it have privileges superior to any other tenant?

2. Assuming arguendo that it does, why do they extend beyond the premises that the government is actually renting onto property in which the owner continues to hold title?

[Mr. Bumble]

So to access the post office you need to be dropped in from the sky?

[Brett Bellmore]

Article 1, Section 8, clause 17:

"To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;"

The courts stopped giving the bolded text effect some time back, and now the federal government doesn't get treated as an ordinary purchaser regardless of whether it gets that legislative dispension.

[David Nieporent]

(which is actually more effective than … Zoom,

Especially in 2008!

you don’t have to strain to keep a straight face,

I did a trial in 2021 where we were still masked. I appreciated it very much because I couldn't keep from smirking at how badly my adversary's arguments were landing with the judge.

[Noscitur a sociis]

Our masking rules got removed while I was in the middle of a trial—I definitely noticed that a lot of people’s poker face skills had atrophied considerably.

[Dan Schiavetta]

LOL

[Malika the Maiz]

Two on the same day. Wonder how much that’s happened.

[Mr. Bumble]

"...companion case to the above,..."

[apedad]

I think Malika is referring to two Justices (Powell and Rehnquist) taking oaths on the same day.

[Malika the Maiz]

Correct.

[Mr. Bumble]

...and courtesy of JoeFromtheBronx, answer below.

[JoeFromtheBronx]

William Cushing and John Blair on Feb. 2, 1790.
Van Devanter and Lamar on January 3, 1911.

BTW, if two Justices join the Court on the same day, seniority is determined by age.

[David Nieporent]

What? No rock, paper, scissors?

[JoeFromtheBronx]

I recently listened to the oral arguments and checked the opinions in two cases in which Justice Powell wrote. See the Oyez website.

Ingraham v. Wright was a 5-4 case (Justice White for Brennan, Marshall, and Stevens in dissent) involving corporal punishment in schools. The punishment was so severe that the junior high children missed school and needed medical attention.

Justice Powell wrote the majority. The punishment was held not to be the type intended to be covered by the Eighth Amendment. Also, unlike a suspension, no hearing was necessary beforehand.

Justice Powell was particularly concerned about the long history of allowing discretion in school administration. His past as a school administrator might have factored in.

Powell later dissented (and obtained a majority a few years later) in Rummel v. Estelle [Rehnquist wrote the majority opinion] and Solem v. Helm, two cases involving life imprisonment of habitual offenders. The difference was the second one had no possibility of parole. Turns out Rummel did obtain parole shortly after his case was decided.

Powell was not as concerned about historical practice in these cases. He said we have a living constitution and cited the language in the old Weems case about how old principles are applied in new ways.

An addendum. Justice White also wrote the dissent in Harmelin v. Michigan involving life imprisonment without parole for a one-time drug offense. His dissent is a tour de force, including warning us not to ignore constitutional limits just because drugs are involved. White like Powell had his moments.

Harmelin later was freed when Michigan changed the law. A Supreme Court ruling is often not the final word.

[Frank Drackman]

Jehovah's witness? I didn't even know he was in an accident!

[Bored Lawyer]

Off topic (but then again, what IS the topic of these posts?):

President Joe Biden's outgoing administration announced on Tuesday a ban on medical debt in American consumers' credit reports, making good on a campaign year pledge less than two weeks before leaving office.
Officials said the new regulation, adopted despite objections from the banking and consumer data industries, would remove $49 billion in medical bills from the credit reports of about 15 million Americans.

Typical empty-headed thinking. The fact that someone has debt, any debt, increases his or her credit risk. Hiding that simply means lenders will have to spread that risk among all lenders. Socialized lending risk.

A real way to deal with the problem might be to have a program to pay off the debt for these people, perhaps over a certain threshold. This rule is just another example of a free lunch, which does not exist. (Yeah, I know, Milton Friedman said that, and he is not in charge anymore.)

[Dan Schiavetta]

A clearer headed solution would be for single payer insurance so that we don’t have crushing medical debts. That not being possible because of the politicians you support, Biden is doing what can be done. Other debts are also exempt from credit ratings. He’s just adding one more.

[jdgalt1]

The problem with a government monopoly on medicine is that it turns both personal and religious choices about diet and other private behavior into everybody's business, which by right, they are not. We should all have learnt that during the COVID plandemic, if not earlier from the Amish, who are living proof that Big Pharma and its products do not make people healthier.

[Dan Schiavetta]

If my child is ill, I’m not going to haggle about price. If I am financially able, I will buy the more expensive option. It’s my child! This is not Adam Smith econlmics. It is basic humanity. IOW, “the market” is not a basis for health care.

[Brett Bellmore]

Sorry, the market IS a basis for health care, just like everything else, because the only alternative to "the market" is shoving a gun in somebody's face.

So, you don't just want health care to be a monopoly, you want it to be a monopoly with guns. Man, I bet the Bell System would have loved to have been able to shoot competitors...

[Dan Schiavetta]

What? When you want to get somewhere should you pick the best or worst road based on market principles?

You don’t have kids. I do. Our values are different,

[John F. Carr]

There is a market in major roads. Toll road operators make agreements that would violate antitrust law if the government were not involved. For example, the operators of Texas SH 130 paid for a higher speed limit than nearby free roads. Around Denver surface streets started getting more traffic lights to push drivers onto E-470. When Indiana sold its toll road it agreed not to build competing highways.

As for minor roads, I only have access to one public road from my house. I have lived on a dirt road, a two lane paved road, and on a divided highway. I can choose where to live. Once I choose I'm stuck with the road.

[Mr. Bumble]

Is it a coincidence that things like medical cost and education cost skyrocketed (way beyond regular inflation) once government got involved (Medicare, college loans)?

[JoeFromtheBronx]

Government was involved in education since before the founding.

Medicare was also not the first time government was involved in health care.

[David Nieporent]

A clearer headed solution would be for single payer insurance so that we don’t have crushing medical debts.

"Someone else should pay for the things I get" is certainly a coherent position, but that doesn't make it a good one. But it's also just kind of an irrelevant observation in this context.

Biden is doing what can be done.

Buying Greenland is also something that can be done, but it doesn't make it rational. It's a terrible, stupid idea that shows that the people making the decisions fundamentally do not understand what they're doing. Making credit reports less accurate does not benefit anyone, let alone society.