Today in Supreme Court History: January 17, 1973 and January 17, 1996

Frontiero v. Richardson (1973) and United States v. Virginia (1996) were argued on the same day, twenty-three years apart. Ruth Bader Ginsburg argued the former case, and wrote the majority opinion in the latter case.

Comments

[Dan Schiavetta]

Jimmy Swaggart Ministries v. Board of Equalization of California, 493 U.S. 378 (decided January 17, 1990): generally applicable sales and use tax (i.e., goods, property) does not violate Free Exercise clause when imposed on religious organization

Seling v. Young, 531 U.S. 250 (decided January 17, 2001): petition for commitment of convicted sexual offender who was about to finish serving his sentence is a civil proceeding (i.e., not punitive) and did not implicate Double Jeopardy or Ex Post Facto prohibitions

Gonzalez v. Duenas-Alvarez, 549 U.S. 183 (decided January 17, 2007): conviction of permanent resident alien for “unlawful driving or taking of vehicle” as defined by California statute was a “theft offense” under Immigration and Nationality Act (8 U.S.C. §1101(a)(43)(G)) and therefore predicate for deportation (not mentioned exactly what this guy did -- the statute seems to cover some innocuous situations)

[Malika the Maiz]

For the last case, it seems “The information alleged that respondent willfully and unlawfully drove or took a 1992 Honda Ac cord without the consent of the owner and with the in tent to deprive the owner of title to and possession of the vehicle. Respondent pleaded guilty to the charge and was sentenced to three years of imprisonment.”

https://www.justice.gov/osg/brief/gonzales-v-duenas-alvarez-brief-merits

The defendant argued he was convicted of aiding and abetting of the offense and that that should be distinguished from the offense. So he aided and abetted in the taking of a Honda Accord…

[Dan Schiavetta]

thanks

[SRG2]

Young may have been a vile individual, but the majority reasoning is the kind of thing only lawyers could come up with. Basically, if a statute appears to impose a civil sanction, then that's that, even if the effect on a specific individual is punitive because of how the stature is implemented.

[Dan Schiavetta]

Also today:

McGrain v. Daughtery, 273 U.S. 135 (decided January 17, 1927): Senate has power to jail subpoenaed witness who fails to appear (it was investigating the Department of Justice and the witness was the brother of the former Attorney General); irrelevant that during habeas process a new Congress was sworn in (the committee work presumably continued because it was a Republican Congress replacing a Republican Congress)

Gonzalez v. Oregon, 546 U.S. 243 (decided January 17, 2006): Attorney General did not have authority to issue “interpretive rule” stating that physicians assisting suicide as permitted by Oregon’s Death with Dignity Act would be violating the federal Controlled Substances Act

[SRG2]

Gonzales (sic), wherein Roberts and Thomas (and Scalia) find Chevron deference to be fine.

[JoeFromtheBronx]

The first case is important regarding the special role of congressional investigatory power. Congressional investigations and oversight have a special role in public wellbeing and checks and balances. They can be trivial. They can abused. However, they provide an important tool and should be done carefully.

[Dan Schiavetta]

Quite true.

Congress can jail someone for contempt even if the purpose of the subpoena has been defeated (he had burned the papers he was asked to turn over). Jurney v. MacCracken, 294 U.S. 125 (1935).

[ReaderY]

You forget it was also a Republican President. Back then, wuaint and strange as it may seem to us today, Republicans didn’t automatically dismiss investigations of administration officials on grounds the official was a Republican and therefore could do no wrong, as they do today.

[jdgalt1]

Pot. Kettle. Black. (and what is "wuaint"?)

[JoeFromtheBronx]

President Biden has decided that we have a 28th Amendment.

https://www.whitehouse.gov/briefing-room/statements-releases/2025/01/17/statement-from-president-joe-biden-on-the-equal-rights-amendment/

We discussed this before. The National Archivist has the responsibility of declaring when an amendment has been ratified. The president does not have a constitutional role in the amendment process. His comment here is advisory.

The archivist last month stated:

“In 2020 and again in 2022, the Office of Legal Counsel of the U.S. Department of Justice affirmed that the ratification deadline established by Congress for the ERA is valid and enforceable. The OLC concluded that extending or removing the deadline requires new action by Congress or the courts.

https://www.archives.gov/press/press-releases/2025/nr25-004

The latter OLC opinion disagreed with the former regarding the "closer and more difficult" questions involving congressional extension of the deadline. It noted further congressional and court action will be determinative.

I think that is correct. At the minimum, the ERA requires Congress to lift the deadline. We do not have a 28A. Justice Ginsburg, fwiw, thought it was proper to restart the process.

To toss it in there, Justice William O. Douglas noted in one letter that he was not too concerned about the ERA because he thought the Constitution itself (particularly the Equal Protection Clause) covered sexual classifications.

A look at the ERA itself, however, suggests the amendment has additional content. Just what that is ... I don't know & it often is not discussed. The black box is just one more reason not to assume that -- while most didn't realize it -- the ERA was ratified.

[Syd Henderson]

I'd hope that even if Congress did lift the deadline, the additional ratifications would have to be renewed. However, I agree with Ginsburg.

[A Japanese Student]

Intimidation Case (First Petty Bench, decided January 17, 1953): Judge, who presided over the defendant's district-court proceeding, presided at one hearing in its appeal where he ordered resumption of once-concluded oral argument to call an additional witness; the Court holds it unlawful but harmless because other judges presided over all other appellate proceedings
Immigration Control Order Case (First Petty Bench, decided January 17, 1963): Statute of limitations is tolled during the defendant's presence overseas, without regard to whether the service of process could have been effectuated or the offense was known to the authorities
Katsuta Kiyotaka Case (First Petty Bench, decided January 17, 1994): Upheld death sentence of man for eight counts of robbery-murder (Court holds oral argument on all capital cases as a customary practice)