Today in Supreme Court History: January 22, 1890

1/22/1890: Hans v. State of Louisiana argued.

Comments

[apedad]

You've got to give Prof. Blackman a big hat tip; eight posts in about eight hours (not including this TiHSC).

Very little snark but also no opinions either.

[Mr. Bumble]

The "opinions" are the commenters job.
At least he refrained from half baked opinion like Ilya's.

[Malika]

It's an interesting thing about law professors. Some might concentrate on what the "correct" reading is, others on what the Court has or will likely rule as correct (and of course many do some of both).

[JoeFromtheBronx]

Guy needs to pace himself though he gets some of the old favorites -- including guesses about his favorite justice, Amy Coney Barrett, in.

[John F. Carr]

He is good at generating a lot of words fast.

[Dan Schiavetta]

Roe v. Wade, 410 U.S. 113 (decided January 22, 1973): balancing interests of the state vs. privacy interest of mother, invalidates Texas’s near-absolute ban on abortion (only exception was to save life of mother) and holds that Due Process prohibits state interference during first trimester; during second trimester the state may regulate abortion “in ways that are reasonably related to maternal health”; and during third trimester may forbid it except to save life of mother (reformulated by Planned Parenthood v. Casey, 1990; overruled by .Dobbs, 2022)

Nostrand v. Little, 368 U.S. 436 (decided January 22, 1962): Court dismisses appeal for lack of a federal question, but as we learn from Douglas’s dissent (joined by Black), the statute in question required teachers to swear an oath that s/he is not a “subversive person”, defined as one who “advocates” the “destruction or alteration of the constitutional form of government of the United States”, which sure seems to me to present a federal issue; the Washington Supreme Court had held only that a teacher was entitled to a hearing on the question; as Douglas points out, this is not adequate because the teacher can get a hearing only if they refuse to take the oath and Constitutional issues would not be fully argued there

Hall v. Geiger-Jones Co., 242 U.S. 539 (decided January 22, 1917): upholding against Equal Protection and Dormant Commerce Clause attack state “blue sky” laws (which prohibit selling of fake securities -- i.e., backed by nothing but “blue sky”) requiring brokers to be licensed

Louisville & Nashville R.R. Co. v. F.W. Cook Brewing Co., 223 U.S. 70 (decided January 22, 1912): Kentucky can prohibit intrastate shipments of liquor to counties that have voted to be “dry”, but to prohibit interstate shipments to such places violates Dormant Commerce Clause

Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., 586 U.S. 123 (decided January 22, 2019): one-year deadline to apply for patent after sale of product applies even though it was a confidential sale to a distributor; America Invents Act of 2011 did not change prior rule (drug to control chemotherapy-induced nausea; “patentee” was suing maker of generic version)

[Malika]

The Dormant Clause case seems weird, but I've never liked that jurisprudence. I can see if a state interfered with trade from one state to another passing through their state but it seems to me that a state should be able to ban X and X being shipped to the state as long as there's not protection of intrastate trade in X.

[A Japanese Student]

Is it possible that Nostrand was decided that way because the case wasn't final?

[Dan Schiavetta]

I'm just going by the Court's own description of why the appeal was dismissed.

[SMP0328]

(reformulated by Planned Parenthood v. Casey, 1990; overruled by Dobbs, 2022)

Casey was in 1992 and also partially overruled Roe by replacing the trimester framework with the undue burden standard. Then President Trump made three appointments to the Courts, Mississippi swung for the fences, and that's how Dobbs happened.

[jdgalt1]

I'll bite: Why did Section 2 of the 21st Amendment not operate to uphold Kentucky's law in Louisville & Nashville RR?

[Frank Drackman]

Did Franz sue Louisiana separately?

[Malika]

Ok, that made me laugh nostalgically. I think Dana Carvey gets deserved credit these days, but Kevin Nealon did great work on SNL as well.

[A Japanese Student]

Nakano Mariko Case (Third Petty Bench, decided January 22, 1985): Citing national-interest provision of Passport Act is not enough for denial of passport, and factual basis must be stated

Isahaya Bay Case (Second Petty Bench, decided January 22, 2015): In 2010, appellate court upheld Saga District Court's order to open the gate in the Isahaya Bay installed as part of reclamation project; this was the fishermen's case. Government, then controlled by the Democrats, did not appeal. Then, after the LDP took power, another district court (in Nagasaki) issued a preliminary injunction against opening the gate (as requested by farmers). Both the fishermen and the farmers sought to fine the Government for each day it violated the injunctions, and the district courts both agreed. Supreme Court refuses to vacate either of them on the ground that district courts can only consider whether the injunction was violated, and not the court order that is causing the violations. (Supreme Court, in March 2023, vacated the 2010 order, closing the gate for good)

Certified Kokoku-Appeal to Discovery Order (Third Petty Bench, decided January 22, 2019): Police has authority to determine if copy of documents related to criminal proceedings can be disclosed, even if the original is held by prosecutors (here's what happened: appellant filed suit against police for unlawful arrest; police refused to disclose warrant applications and investigative reports; because they were not admitted during trial, the holder of the documents must order them released, but who is the holder?)

Hyogo Personal Information Ordinance Case (Second Petty Bench, decided January 22, 2021): Denial of personal information disclosure request by public enterprise (here, prefecture-owned hospital) must be appealed by filing a complaint against the enterprise, not the Governor

[JoeFromtheBronx]

Did the Japanese Supreme Court recognize a right to travel?

[A Japanese Student]

It is one of the enumerated rights. Despite the "inviolate" nature of the right, like all other rights, "public welfare" may be invoked as an exception. For example, the Court once upheld denial of passport on that basis when the applicant sought to enter Moscow during Korean War. (This "public welfare" is different from the "public welfare" mentioned in the first clause, as only the latter can apply to economic policy grounds.)

Article 22. Every person shall have freedom to choose and change his residence and to choose his occupation to the extent that it does not interfere with the public welfare.
Freedom of all persons to move to a foreign country and to divest themselves of their nationality shall be inviolate.

[JoeFromtheBronx]

Thanks. The "change his residence" language does seem more narrow than a general right to intra-nation travel.

[JoeFromtheBronx]

Justice Stevens and Justice Souter's dissents in Seminole Tribe v. Florida provide a good discussion of Hans v. Louisiana. Sovereign immunity jurisprudence is quite confused.

https://readingroom.law.gsu.edu/cgi/viewcontent.cgi?article=1918&context=gsulr

Roe v. Wade was a 7-2 opinion and some of its analysis is still good law. For instance, a fertilized egg is still not a constitutional person. The Privileges and Immunities Clause aspect of its companion case (Doe v. Bolton) remains. Justice Kavanaugh separately in Dobbs granted a right to travel to obtain an abortion.

Roe was a logical application of privacy precedents. Many lower courts followed a similar approach. Later, Planned Parenthood v. Casey emphasized the equal protection aspects while also noting a right to conscience was also involved.

Linda Coffee (whose birthday is on Christmas), one of the lawyers of "Jane Doe" (she had argument time in the lower court) is still alive. One more tidbit: the judge who wrote the lower court opinion (which relied on the Ninth Amendment and vagueness) is the same woman judge who swore LBJ in after JFK was assassinated.

[A Japanese Student]

And don't forget the "capable of repetition, yet evading review"! (Yes, l know that rule was first adopted decades before Roe.)

[David Nieporent]

Justice Kavanaugh separately in Dobbs granted a right to travel to obtain an abortion.

Quibble about the word "granted." One justice can't do anything at all, let alone grant a right. How about "acknowledged"?

[JoeFromtheBronx]

I'm open to word choice -- editing is not always my strong point -- but note that "grant" has different meanings, including "to accept the truth or existence of."

[Noscitur a sociis]

I don’t think that meaning works with that construction.