Today in Supreme Court History: January 13, 2014

1/13/2014: NLRB v. Noel Canning argued.

Comments

[Dan Schiavetta]

One, Inc. v. Olsesen, 355 U.S. 371 (decided January 13, 1958): Citing its recent analysis in Roth v. United States, Court reverses Circuit Court and vacates obscenity conviction (ironically in Roth the Court had affirmed an obscenity conviction). The Circuit Court decision, 241 F.2d 772, is quite a jolt, an eloquent essay on the changing definition of obscenity (“morals are not static like the everlasting hills, but are like the vagrant breezes to which the mariner must ever trim his sails”) which turns into a gastrointestinal eruption (the magazine is “obscene and filthy”). At issue was a groundbreaking magazine called “One” which had fiction, articles and photographs dealing with homosexuality (both sexes). An article on “One” is at https://daily.jstor.org/one-the-first-gay-magazine-in-the-united-states/

Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (decided January 13, 1988): First Amendment does not preclude school board from redacting on privacy grounds pages of high school newspaper on the lives of its pregnant students (even though names were changed) and on inappropriateness grounds mentions of sexual activity and birth control (the board’s action probably resulted in more unwanted pregnancies)

Cochnower v. United States, 248 U.S. 405 (decided January 13, 1919): Secretary of the Treasury had no power to cut customs official’s compensation (from $5 to $4 per diem) because statute empowered him only to “increase and fix” compensation, not reduce it (from the lower court opinion we see that the cut was not punishment but the result of “reorganization and reclassification”)

Babcock v. Kijakazi, 595 U.S. 77 (decided January 13, 2022): years spent by un-uniformed technician in assisting National Guard was not “years in uniformed service” so as to avoid reduction of Social Security benefits under dual-pension “windfall” rule

Chambers v. United States, 555 U.S. 122 (decided January 13, 2009): conviction for failing to report to prison for violent offense was not itself a “violent felony” as an aggravating sentencing factor under the Armed Career Criminal Act (overruled as to the analysis, but not the result, by Johnson v. United States, 2015)

[The Margrave of Azilia]

"(the board’s action probably resulted in more unwanted pregnancies)"

/citation needed

[Dan Schiavetta]

ha!

[The Margrave of Azilia]

It may not be that funny - there's no proof of the assertion that editing the student paper got more students pregnant as a result. Do you have any statistics, for instance, to back up your assertion?

[Dan Schiavetta]

I said "probably", but it's a sure thing that keeping kids in the dark about birth control results in more unwanted pregnancies.

[The Margrave of Azilia]

The out-of-wedlock pregnancy rate is higher today than in the dark ages of ignorance.

[Dan Schiavetta]

But the rate of teen pregnancy (i.e., high school kids) is down.

[Purple Martin]

...while there are far fewer overall pregnancies-per-capita, including teenage pregnancy rates. Perhaps one might also consider fewer-per-capita couples bound in wedlock as a factor.

[apedad]

On Babcock, that sentence, " . . . years spent by un-uniformed technician in assisting National Guard was not “years in uniformed service . . . . ," seems inelegant.

How about just using the Oyez description, ". . . a National Guard dual-status technician 'is a Federal civilian employee' who 'is 'assigned to a civilian position as a technician'' while a member of the National Guard."

[Dan Schiavetta]

I don't read Oyez for my summaries (I read only the actual opinions). But it's unclear to the reader what "dual-status" might mean. And "un-uniformed" takes the place of "civilian", because it's not clear to the average reader whether National Guardsmen are "civilians".

As for being "inelegant", that's practically my middle name.

[Purple Martin]

"...'assigned to a civilian position as a technician' while a member of the National Guard,"

...I don't know...I think most people understand the National Guard is part of the military, and the modifier "dual-status" (civilian week-day employee/military Weekend Warrior) makes the legal issue far more clear.

[Syd Henderson]

A sirty magazine called "One" should be aimed at autosexuals and maybe liver-sexuals.

[Dan Schiavetta]

Agreed, it's an odd name for a magazine directed at gay people.

(You'll laugh at this -- there used to be a magazine for bisexuals called "Anything That Moves".)

[JoeFromtheBronx]

The Wikipedia entry for the One Institute notes:

The name was derived from an aphorism of Victorian writer Thomas Carlyle: "A mystic bond of brotherhood makes all men one."[4] The name was also a nod to referring to a gay person as "one of us".[5]

The idea that homosexuals and speech related to them should receive equal treatment is an early sign that homosexuals are "one of us," a member of We the People who should have equal liberty.

[Dan Schiavetta]

Thanks!

[A Japanese Student]

We have a big case today, resulting in big consequences on... attorney advertisement.

Rent Control Regulation Case (First Petty Bench, decided January 13, 1955): Vacated and remanded because lower court relied on amendment passed in October 1948 in convicting defendant of violating rent control in 1947
Bribery Case (Second Petty Bench, decided January 13, 1961): Appellate court may reverse acquittal and convict defendant after examining witnesses, even if the testimony turned out to be the same as the one given in the district court with no additional information (in Japan, double jeopardy only applies after exhaustion of appeals; here, because the prosecutor appealed acquittal, single jeopardy continued throughout the appellate process)
Prosecutorial Review Commission Review Case (First Petty Bench, decided January 13, 1971): Decision of the Prosecutorial Review Commission not to pursue cases is not subject to judicial review (the Commission is yet another deviation from traditional double jeopardy; this citizens' panel can recommend prosecutors to re-investigate dropped charges, and since 2009, can prosecute on its own when they refuse to do so)
City's Corp. Case (Second Petty Bench, decided January 13, 2006): Many loan companies, including City's Corp., exploited loophole in how anti-usury laws worked - Interest Rate Restriction Act (which capped interest rate at 15%-20%), Interest Rate Regulation Act (which criminalized interest rate above 29.2%), and Money Lending Business Act (which made "voluntary" payments of the "gray zone rate" between Restriction Act rate and Regulation Act rate nonvoidable). Court rules that when debtors were forced to pay the above-rate interest, it is not paid voluntarily; prior cases held that such payments were actually made against the principal, and any remainder must be refunded (you can still see TV ads by law firms specializing on gray-zone rate)

[JoeFromtheBronx]

The Order List that dropped today was a ho-hum housekeeping matter overall but reminds us that only the liberals explain why they do not take part in cases.

Alito and Barrett silently did not take part this time around. Sotomayor, Kagan, and Jackson reference ethical rules when they do not take part.

https://www.supremecourt.gov/orders/courtorders/011325zor_5425.pdf

[Dan Schiavetta]

"Liberal" is a relative term. Only Sotomayor can be called a "liberal" in the sense that Brennan and Marshall were (let along Douglas) and even she is only mildly so. Kagan and Jackson are moderates. Roberts, Gorsuch and Kavanaugh are conservatives. Thomas, Barrett and Alito are far right. Mostly this is not a surprise, considering the Presidents who appointed them.

[JoeFromtheBronx]

I do think the label is validly applied.

I won't dwell on the subject but will toss in Jackson's dissent in Erlinger v. U.S. from last term, which came to mind when U.S. v. Booker came up recently.

Her background makes the Apprendi criticism particularly interesting. And, in notable references news, she quotes something by Berman & Bibas. Doug Berman runs the Sentencing Law and Policy Blog. Bibas became a federal judge.

[The Margrave of Azilia]

Then who's been declaring a right to gay marriage and abortion?

Nobody here but us moderates!

[Dan Schiavetta]

Those are, in fact, mainstream American viewpoints.

[The Margrave of Azilia]

To the extent that's true, it's only because the radicals not only moved the Overton Window, but went to the left of the window and punched a hole in the wall.

And assuming they had a majority or a significant plurality behind them, that doesn't make them moderate. Would you call national Prohibition moderate? Or do you want me to go Godwin?

[Dan Schiavetta]

With the Court, the "window" has moved to the right. While society has moved to the left.

As Justice Stevens put it in 2007, in a case where the Court seemed to forget that it was black children who had been disadvantaged by segregation, "Nobody who was on this Court when I joined it in 1975 would agree with today's decision." Parents Involved in Community Schools v. Seattle School District, 551 U.S. 701, 803 (Stevens, J., dissenting).

[The Margrave of Azilia]

My point is that the Justices declaring a right to abortion and same-sex marriage are not moderates. Does your anecdote rebut this?

[Dan Schiavetta]

By now a significant majority of Americans agree with both those positions.

[The Margrave of Azilia]

See my remarks above, with regard to majorities.

[Purple Martin]

OK, then:

...a significant consensus of moderate Americans agree with both those positions.

[A Japanese Student]

I feel like this doesn't show the whole picture - unlike the Kennedy Court, the ideological divide is often not the liberal-conservative or left-right. Justices Gorsuch and Jackson (and maybe Sotomayor) have embraced libertarian views, while Kagan hasn't. Pulsifer is a good example. (And while "far-right" might have been the appropriate label for Justice Barrett for the first 6 months, she has moved to the center significantly in my opinion. Fulton, Does, Trump v. US, you name it.)

[David Nieporent]

I think they're all — I mean, Sotomayor, Jackson, Kagan — liberals. I just think that trying to break down an assessment of a Supreme Court justice into a simplistic one dimensional graph isn't very informative. There are differences between them, sure, but it's not captured very well by calling Kagan/Jackson "moderate."

Having said all that, calling Barrett "far right" doesn't make a lot of sense under any framework.

And I don't understand the "considering the Presidents who appointed them" unless you just crudely mean GOP vs. Democrats. Thomas was appointed by the not-at-all-far-right Bush 41, while Alito ("far right") and Roberts ("conservative") were both appointed by the also not-at-all-far-right Bush 43; meanwhile both Sotomayor ("liberal") and Kagan ("moderate") were appointed by the same president.

[David Nieporent]

There are so many axes on which to evaluate the justices: formalist/pragmatist, institutionalist/bomb-thrower, partisan/judicial, etc.