Today in Supreme Court History: January 25, 1819

1/25/1819: Thomas Jefferson charters the University of Virginia. 176 years later, the Supreme Court would decide Rosenberger v. Rector and Visitors of the University of Virginia (1995).

The Rehnquist Court

Comments

[JoeFromtheBronx]

Well, the entry dropped normally, after multiple issues while JB is flooding the zone with his .02.

Jefferson provided instructions for his epitaph:

Here was buried
Thomas Jefferson
Author of the Declaration of American Independence
of the Statute of Virginia for religious freedom
& Father of the University of Virginia

"because by these," he explained, "as testimonials that I have lived, I wish most to be remembered."

https://www.monticello.org/research-education/thomas-jefferson-encyclopedia/jeffersons-gravestone/

I am inclined to believe that Jefferson would have supported Souter's dissent in today's case. Not that I think his views are determinative. We have to decide such questions based on current understanding, guided by legal and practical experience.

Souter was likely right under that test too.

[Dan Schiavetta]

I'm doing yesterday too, because Josh didn't to a "Today" then.

Springer v. United States, 102 U.S. 586 (decided January 24, 1881): upholding federal income tax because it was not a “direct tax” such as has to be apportioned among the states by population (as is required by art. I, §2) (a later contrary decision led to the Sixteenth Amendment)

Panama Ry. Co. v. Pigott, 254 U.S. 552 (decided January 24, 1921): affirming Canal Zone District Court verdict for 7-year-old boy who was “run over” by a train (and still lived?); interesting because Holmes mentions that there was conflicting “testimony” from attorneys as to the law of Panama and judge had left that question of law for the jury (I once had a case transferred to Montreal and the Canadian attorneys told me that in that system “experts on the law” are allowed to testify -- maybe it’s relevant that Quebec, like Panama, has a civil law and not a common law tradition)

National Organization for Women v. Scheidler, 510 U.S. 249 (decided January 24, 1994): RICO claim brought by abortion clinics against “pro-life” organizations can go forward because no economic motivation need be alleged (after years of litigation NOW finally lost)

Illinois v. Caballes, 543 U.S. 405 (decided January 24, 2005): appearance of second officer with cocaine-sniffing dog during traffic stop did not infringe Fourth Amendment where stop was not extended beyond the time it would ordinarily take to write the traffic ticket (first officer must have been a really slow writer)

Comm’r of Internal Revenue v. Banks, 543 U.S. 426 (decided January 24, 2005): if your recovery is taxable income (this was an employment discrimination suit), you have to pay tax even on that part that goes to the attorney (but the attorney pays on that amount also -- isn’t that taxing the same income twice?)

===================

Montgomery v. Louisiana, 577 U.S. 190 (decided January 25, 2016): Miller v. Alabama, 2012, declaring that life without parole for juvenile offenders is “cruel and unusual punishment”, is to be applied retroactively

Richardson v. Lawrence County, 154 U.S. 536 (decided January 25, 1864): holder of bonds could recover par value even though railroad sold them at 64 cents on the dollar, where county had authorized railroad to sell only at par

Menominee Indian Tribe of Wisconsin v. United States, 577 U.S. 250 (decided January 25, 2016): no equitable tolling of statute of limitations for tribe suing on claim that federal government breached contract by failing to pay support costs for Indian-run health service; tribe mistakenly believed that there was a toll until a related class action was decertified (the law on that issue is muddled -- they should have been “better safe than sorry”)

Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447 (decided January 25, 1993): no “attempted monopolization” (§2 of the Sherman Act) where there was no “dangerous probability of success” (this had to do with a new shock-absorbing polymer used in athletic products; manufacturer’s switch to new distributor put old distributors out of business) (“The purpose of the Sherman Act is not to protect businesses from the working of the market; it is to protect the public from the failure of the market”)

Virginia v. American Booksellers Ass’n, 484 U.S. 383 (decided January 25, 1988): certifies question to Virginia Supreme Court as to applicability of new Virginia statute criminalizing display of sexually explicit materials where juveniles could see it insofar as it would apply to juveniles of different ages (Virginia court answered that books in question were not “sexually explicit” as defined in the statute, 236 Va. 168) (books included “Ulysses” and “The Witches of Eastwick”)

Smith v. Hamm, 144 S.Ct. 414 (decided January 25, 2024): A sort of companion case to Hamm v. Miller (commented on September 22), wherein Alabama wants to try a new method of execution (nitrogen hypoxia) on someone it tried twice already to execute by lethal injection, and where Sotomayor leads four Justices in wanting execution stayed. Miller was executed by this method on Sept. 26, 2024; Smith, four hours after this decision came down.

[F.D. Wolf]

(after years of litigation NOW finally lost)

You ain't kidding, brother. Twenty-eight years of litigation to be exact, including three stops at the Supreme Court. NOW filed its initial suit in June 1986. The final court decision in the case came on April 29, 2014, with the Seventh Circuit affirming an award of $63,391.45 in costs to the defendants (about $2,265 per year of litigation.) Judge Frank Easterbrook, writing for the court, concluded the opinion with, "This litigation has lasted far too long. At last it is over." 750 F.3d 696, 700 (7th Cir. 2014).

[A Japanese Student]

Civil RICO statute is written so expansibly that many cases have zero connection with racketeering gangs. Like the Medical Marijuana this term. I remember one case where RICO claim was upheld for making a false ID to enter an abortion-related conferences, though I couldn't find the exact case caption.

[F.D. Wolf]

I remember a TV cop show with an exchange to the effect of:

COP 1: "We can get him for racketeering."

COP 2: "What's 'racketeering'?"

COP 1: "No one knows."

[Mr. Bumble]

Cue Miss Fanny.

[Dan Schiavetta]

A law secretary who I did research for said that RICO reminded him of what Thomas More said about knocking down all the laws so as to get at the Devil. "Then when the Devil comes after you, where will you hide, all the laws being flat?"

[David Nieporent]

Popehat: it's never RICO.

[JoeFromtheBronx]

I found Cabelles dubious.

The Court argues that "In our view, conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed respondent’s constitutionally protected interest in privacy. Our cases hold that it did not.”

The citation of the usage of dogs at airports does not seem to be conclusive as compared to the use of dogs during traffic stops as Ginsburg explains in her dissent. I'm also both amused and inclined to agree with Souter's discussion of the nonexistence of "infallible dogs."

The Supreme Court later protected people from dogs when brought within the "curtilage" of their homes. Florida v. Jardines

[Dan Schiavetta]

The key word in the Fourth Amendment is "unreasonable". Dogs walk around and sniff. It's what they do. One expects it, or at least is resigned to it, from non-K9 dogs. (At least that's my guess as to the unspoken rationale.)

[ReaderY]

What genus does this non-canine dog species belong to if not canis?

Or are you referring to dogs with all teeth between their incisors and premolars missing?

[David Nieporent]

The Supreme Court later protected people from dogs when brought within the "curtilage" of their homes. Florida v. Jardines

But in a terrible opinion by Kagan from the same term, SCOTUS decided in Florida v. Harris that drug dogs need not actually be competent to support probable cause.

[JoeFromtheBronx]

drug dogs need not actually be competent to support probable cause

Kagan notes that here there was reasonable cause to believe that the dog was competent. Also, the defendant is allowed to challenge the dog's competence. The Court rejected what they deemed an unnecessarily strict test of competence.

The "fair probability" of competence test might result in some incompetent dogs. The test is that there is probable cause animals or humans are reliable. If the opinion is incorrect, I am not sure how terribly so it is.

[David Nieporent]

Kagan notes that here there was reasonable cause to believe that the dog was competent. Also, the defendant is allowed to challenge the dog's competence. The Court rejected what they deemed an unnecessarily strict test of competence.

My comment was snarky but ultimately, I believe, accurate. Kagan's ruling was that the dog's actual performance in finding drugs was unimportant — there didn't even need to be any records kept! — as long as it had taken a class. The "reasonable cause to believe" that you refer to was that the dog had been trained to find drugs.

In theory, yes, she was only ruling that there's no a rigid test for the dog's reliability. In practice, she said that unless the cops lied about the dog's having been trained, perhaps getting the dog's certificate from the equivalent of a mail-order diploma mill, the court should presume the dog is reliable.

Remember, she felt the need to note that even if the dog alerted when there was nothing there, that shouldn't be considered evidence of unreliability because maybe it was just so good at finding drugs that it was alerting to otherwise undetectable stuff.

[JoeFromtheBronx]

She noted for the (FWIW unanimous Court):

"And the court should then evaluate the proffered evidence to decide what all the circumstances demonstrate. If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause. If, in contrast, the defendant has challenged the State’s case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence. In all events, the court should not prescribe, as the Florida Supreme Court did, an inflexible set of evidentiary requirements. The question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test."

A jury that has to determine BARD is not omniscient. They make mistakes. The lower probable cause test is going to include quite a few mistaken calls. Dogs as well as humans.

The opinion ends this way:

Because training records established Aldo’s reliability in detecting drugs and Harris failed to undermine that showing, we agree with the trial court that Wheetley had probable cause to search Harris’s truck. We accordingly reverse the judgment of the Florida Supreme Court.

That references a specific dog. It would be relevant if Aldo, like an informant, met specific general tests. Nonetheless, Kagan doesn't remove the ability of a challenge tied to the specific dog, for instance, if there is good evidence they were personally unfit at the time of the alert or the handler wrongly triggered them.

[JoeFromtheBronx]

As to the last part, she noted that a reasonable judgment that a dog will make a reliable decision should take into consideration various things. For instance, the lack of drugs might mean there was a lingering odor of drugs recently there.

The test there would be whether as a whole the dog was reliable. Similarly, probable cause would be present for a person using various criteria, even if the criteria are not always accurate. It is a law of averages situation.

Then, we would have a factual question of what criteria were appropriate. There has been much discussion over the years about how this was applied in a sloppy way such as drug dealer profiles. Not being a dog expert, I am agnostic on that here.

[Noscitur a sociis]

Under Rodriguez v. US, the police can’t extend the stop to get a dog there unless they have reasonable suspicion. If the car is otherwise lawfully there, what do you think they should have to do before being allowed to have a dog walk around outside it.

[JoeFromtheBronx]

My concern here is related to the dog, not the length of the stop in general. The two dissents address my main concerns.

[A Japanese Student]

I believe Japan, a civil-law jurisdiction, also allows expert testimony on legal interpretation especially in constitutional cases. Parties also frequently file documentary evidence on legal matters. For example, here is a document (in same-sex marriage litigation) listing all pieces of evidence submitted with the complaint. https://www.call4.jp/file/pdf/202103/7d9840e883a62f1da7cf92810cf2ec09.pdf

There are documents on medical views of homosexuality, surveys, etc. But the large majority of documents filed are court decisions, statutory law, transcripts of legislatures, books written by law professors, and "amicus curiae" briefs. (The only court in Japan that formally accepts amicus is the Grand Bench of the Intellectual Property High Court, equivalent to en banc Federal Circuit. In other cases, one of the parties submits the brief as evidence.)

[Dan Schiavetta]

It just seems odd that the handling attorney is not expected to know the law. What did he go to law school for?

[A Japanese Student]

Of course attorneys are expected to know the law. Authority is the key - there is a difference between, say, a public defender arguing about the constitutionality of laws, and a prestigious law professor giving expert opinions on constitutional interpretation.

The laws "introduced" in that document were all local ordinances, and their purposes were not for application, but to show that some municipalities have treated sexual orientation as protected characteristics. There are also some case laws, some of which were cited for factual findings, others for dicta. Actual precedential case laws (that judges apply) would be cited in the main brief.

[Dan Schiavetta]

Might be hard to know when to draw the line between the roles of ordinary attorney and expert attorney, particularly when some laws at issue in a certain case are general and some special.

[Malika the Maiz]

I think the Miller ruling at issue in Montgomery might be more precisely described as life without the possibility of parole is unconstitutional for juvenile offenders (they could be denied parole their entire life but had to have some chance at it).

[F.D. Wolf]

A juvenile offender can still constitutionally be given a sentence of life without parole, as long as the sentence is not mandatory, and the sentencer (judge or jury) has the discretion to consider the defendant's age as a mitigating factor. At least, so said the Supreme Court in Jones v. Mississippi (2021).

[Malika the Maiz]

Yes, that’s better said.

[SRG2]

The idea that anyone can determine lifetime incorrigibility on a juvenile is such evident garbage that it need not even be debated.

This is not the same as saying that no juveniles are incorrigible, of course.

[John F. Carr]

Proof of foreign law was changed by Federal Rule of Civil Procedure 44.1 in 1966. From the commentary to the then-new rule:

The second sentence of the new rule describes the materials to which the court may resort in determining an issue of foreign law. Heretofore the district courts, applying Rule 43(a), have looked in certain cases to State law to find the rules of evidence by which the content of foreign-country law is to be established. The State laws vary; some embody procedures which are inefficient, time consuming and expensive. See, generally, Nussbaum, Proving the Law of Foreign Countries, 3 Am.J.Comp.L. 60 (1954). In all events the ordinary rules of evidence are often inapposite to the problem of determining foreign law and have in the past prevented examination of material which could have provided a proper basis for the determination. The new rule permits consideration by the court of any relevant material, including testimony, without regard to its admissibility under Rule 43.

[Dr. Ed 2]

"Illinois v. Caballes, 543 U.S. 405 (decided January 24, 2005): ...extended beyond the time it would ordinarily take to write the traffic ticket (first officer must have been a really slow writer)"

Most departments didn't have laptops in the cruisers back then -- the officer had to call the license and plate into the dispatcher who would run both (amongst other things). And all the other cops heard the driver's name and where the stop was.

[F.D. Wolf]

Yesterday, Vice President JD Vance cast his first tie-breaking vote in the Senate to confirm Pete Hegseth as Defense Secretary. So, five days into his tenure, Vance has already cast more tie-breaking votes than Joe Biden did in eight years as vice president. Twelve of our fifty vice presidents cast zero tie-breaking votes, but the only two (other than Biden) to serve a full term as vice president were Charles Fairbanks and Dan Quayle. The others served only a partial term, either because they died in office, ascended to the presidency due to the death or resignation of the President, or, in the case of Nelson Rockefeller, was appointed to complete the tenure of Gerald Ford, who ascended to the presidency upon the resignation of Richard Nixon.

[Dan Schiavetta]

IIRC Mondale was the first V.P. to break a tie on something substantive. I forget the details.

[JoeFromtheBronx]

Some discussion and partial listing here. There were some notable vetoes before Mondale.

https://en.wikipedia.org/wiki/List_of_tie-breaking_votes_cast_by_the_vice_president_of_the_United_States

[Malika the Maiz]

Here’s an interesting one by VP Breckenridge:

“February 28, 1861: Motion "that the doors be opened."

What the what?

[F.D. Wolf]

I believe all that means in parliamentary language is to let the public in to witness the proceedings.

[Syd Henderson]

"[John Adams] He used his votes to preserve the president's sole authority over the removal of appointees,[5] influence the location of the national capital,[6] and prevent war with Great Britain." [from the Wikipedia article above.]

Those seem pretty substantial. Kamala Harris holds the record for most ties broken, beating out Calhoun and Adams, both of whom had two terms to set the record.

[F.D. Wolf]

Note the date. President Lincoln and the new Congress will be taking office in four days. The Southern Democrats have all recently resigned their seats. States have seceded. Things are about to explode.

[SRG2]

Mrukowski McConnell and Collins were the only three sensible Republicans in the Senate. The rest are either stupid, cowards, or Russian assets.

[JoeFromtheBronx]

McConnell's past activity on the "stupid, cowards, or Russian assets" meter is surely not negated by this one vote.

[Malika the Maiz]

McConnell’s vote was interesting. Maybe it was to try to ensure any maladministration by this unqualified creep has to now be owned by the Administration?

[not guilty]

Mitch McConnell being called sensible riles me, what with his having played Calvinball regarding Supreme Court vacancies in 2016 and 2000.

[Dr. Ed 2]

Bullbleep -- I'd rather see Golden than Collins in there, and don't get me going on the corruption of the Murkowski clan.

The good guys won last night, toxic feminazism lost...

[SRG2]

You think that Hegseth getting Sec of Defense is a win? He's a DEI hire - Drunk, Ethically-challenged, Inexperienced. But Trump nominated him so he must be good. Sheesh you authoritarians are dumb

[Dr. Ed 2]

Spiro Agnew resigned.

[Dr. Ed 2]

Remember they had to get rid of him before they could get rid of Nixon, but letting Ford then fill Agnew's seat was to enable Nixon to resign because otherwise it would have been Carl Albert (D-OK).

That would have provoked a revolution.

[David Nieporent]

but letting Ford then fill Agnew's seat was to enable Nixon to resign

Maybe I'm oversensitive to Dr. Ed's idiocy and am thus interpreting this uncharitably, but I read it to be an insinuation that they appointed Ford to be veep for the purpose of enabling them to force out Nixon. But of course they appointed Ford to be veep because that's what the 25th amendment — ratified before Nixon was even nominated, let alone elected the first time — called for. It was, of course, Nixon who nominated Ford, so if he was trying to protect himself from being removed, that would've been a weird thing to do.

[Dr. Ed 2]

"Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress." [emphasis added]

Congress LET Ford fill Agnew's seat via a majority vote...

[F.D. Wolf]

Yes, but he is not one of the vice presidents who never cast a tie-breaking vote. He cast two.

[A Japanese Student]

Stock Option Taxation Case (Third Petty Bench, decided January 25, 2005): Stock options provided to employees by foreign corporations are taxable as "salary income" (subject to higher tax rate) and not "occasional income" under Income Tax Act

Tort Claims Case (First Petty Bench, decided January 25, 2007): 10-year-old child in childcare center gets assaulted by other children resulting in permanent disabilities. Court rules that the prefecture, not the center, is liable for negligence because it was the prefectural CPS that took the child into custody (due to mother's illness)

Meguro Local Assembly Official Expenses Reimbursement Case (Second Petty Bench, decided January 25, 2013): Docketing fee for citizen suit filed by member of Meguro Local Assembly is not an "official expense"; Transcripting fees for municipal committees are "official expenses" when the transcript was used both as an evidence in suit and during assembly deliberations

2021 House of Representatives Election Malapportionment Case (Grand Bench, decided January 25, 2023): Held constitutional 208% malapportionment; the district was already upheld in 2018, and increased divergence is caused by natural changes in population

(going to post January 19, 20, and 24 cases as replies.)

[A Japanese Student]

January 19:

Abortion through Professioanl Conduct, Abandonment Causing Death Case (Third Petty Bench, decided January 19, 1988): Failure to treat born-alive fetus after 26-week abortion constitutes "abandonment by person responsible for care" in addition to abortion (Japan technically does criminalize abortion - woman gets up to 6 months and physicians up to 7 years; however another law makes pre-viability abortion legal subject to spousal consent)

Cabinet Secretariat Classified Expenditure Case (Second Petty Bench, decided January 19, 2018): Exact date and amount of expenditure of classified account not subject to FOIA; fiscal-year total must be disclosed (the account - 官房機密費 - is ostensibly for intelligence purposes; some media reports suggest they instead go to politicians)

January 20:

Sorachibuto Shrine Case (Grand Bench, decided January 20, 2010): Allowing shrine to use public lands for free violates separation of church and state; seemingly abandoned Lemon-like test in favor of another balancing tests

Coinhive Case (First Petty Bench, decided January 20, 2022): Reversed conviction of web designer who added a cryptomining script to his own blog for a few weeks; in evaluating whether a program meets the definition of "unauthorized commands", courts must use both the subjective and objective factors (here, the Court found online cryptominers unreasonable to ordinary person (subjective factor), but harmless when compared to what regular ads could because it stopped mining when page closed (objective factor)) (Court also notes the importance of website owners getting rewarded for their works)

[Malika the Maiz]

Is any of this incorrect?

Abortion in Japan is allowed under a term limit of 22 weeks for endangerment to the health of the pregnant woman, economic hardship, or rape.[1] Chapter XXIX of the Penal Code of Japan makes abortion de jure illegal in the country, but exceptions to the law are broad enough that it is widely accepted and practiced. Exceptions to the prohibition of abortion are regulated by the Maternal Health Protection Law that allows approved doctors to practice abortion on a woman if the pregnancy was the result of rape or if the continuation of the pregnancy endangers the maternal health because of physical or economic reasons. Anyone trying to practice abortion without the consent of the woman will be prosecuted, including the doctors. If a woman is married, consent from her spouse is also needed to approve abortions for socioeconomic reasons, although the rule doesn't apply if she is in a broken marriage, suffering abuse, or other domestic issues. Despite the partner's consent not being necessary for unmarried women and women who were impregnated by abusive partners or through rape, many doctors and medical institutions seek a signature from the man believed to have made the woman pregnant for fear of getting into legal trouble, rights advocates say.[2][3]

https://en.m.wikipedia.org/wiki/Abortion_in_Japan

[A Japanese Student]

Accurate, yes. Many OBGYNs here do have the license to perform surgical abortions, and the "economic hardship" provision pretty much encompasses all abortions. Criminal prosecution for abortion is very rare. As you note spousal consent requirement still exists, and medication abortion is still under clinical trial, so it's not as accessible as, say, in blue states.

In recent years however, women who had miscarriages have been prosecuted for "abandoning a corpse" - a felony that is usually applied to murder suspects prior to arrest for murder. In 2023 the Supreme Court acquitted a Vietnamese woman, who was charged after she miscarried a twin, named the deceased, wrote messages to them, stored the bodies in a box, and went to see a physician. No, this is not the Onion.

[Dr. Ed 2]

My guess is that the prosecution of the mother was a typical heavy-handed means of forcing her to receive mental health "treatment" -- I've seen similar stunts pulled in this country. Grrrrr....

Sounds like she was messed up, but this is not how you help her!

Chemical abortions are scary from a public health standpoint -- somewhere between 1%-5% will die if they don't have a followup surgery. Something that "you can see" in a D&C but not with the pills.

[David Nieporent]

somewhere between 1%-5% will die if they don't have a followup surgery.

Is that as true as everything else you say?

[Dr. Ed 2]

Are you really the person you appear to be?

[A Japanese Student]

January 24:

Tort Claims Case (Third Petty Bench, decided January 24, 1995): Parents not civilly liable for fire caused by child (who cannot be held liable) unless they were grossly negligent in supervising them, regardless of whether the child was grossly negligent (in Japan, gross negligence is required for tort claims arising from accidental fire)

Certified Kokoku-Appeal on Objection to Intervention (Third Petty Bench, decided January 24, 2003): Residents near proposed waste disposal site can intervene as defendants in litigation challenging denial of permits

Business Negligence Causing Death and Injury Case (Second Petty Bench, decided January 24, 2003): Reversed conviction of taxi driver for negligent driving that killed a passenger after a car crashed into it; although taxi driver did fail to slow down, accident was unavoidable because the crashing car ignored stop sign and drove at 70km/s in 30km/s road

Chlorella Supplement Advertisement Injunction Case (Third Petty Bench, decided January 24, 2017): Advertisement to the public is a "solicitation" that can be enjoined under the class-action provision of the Consumer Contract Act (advertisement noted that chlorella dietary supplement can cure diseases)

[Dr. Ed 2]

70km/s is 252,000 km/hour
That's 204 Mach...

Ummmm....