Today in Supreme Court History: February 22, 2005

2/22/2005: Kelo v. City of New London argued

Comments

[Dan Schiavetta]

Joshua DeShaney v. Winnebago County, 489 U.S. 189 (decided February 22, 1989): Due Process protection does not apply to actions of private actors and state has no duty to provide for citizen’s safety absent a “special relationship” such as when he is in custody (here, child injured by father’s abuse even after state welfare officials repeatedly told of abusive incidents but made no attempt to remove him from home) (as Blackmun memorably wrote in dissent, “Poor Joshua!”)

Whalen v. Roe, 429 U.S. 589 (decided February 22, 1977): right to privacy not invaded by state statute requiring state to receive copies of all prescriptions of narcotics; valid use of police power, security procedures in place, and no showing that information will be misused such that patients become stigmatized as addicts

Helix Energy Solutions Group v. Hewitt, 598 U.S. 39 (decided February 22, 2023): highly paid oil rig supervisor entitled to overtime under Fair Labor Standards Act because though a “bona fide executive” he was paid by the day (Court harmonizes two FLSA definitions)

Buck v. Davis, 580 U.S. 100 (decided February 22, 2017): ineffective assistance of counsel when during penalty phase of capital murder trial counsel presented expert whose report said that being black was a plus factor for future violence (the expert’s general opinion was that defendant himself was unlikely to be a future danger, but the damage had been done, with the prosecution hitting on this in summation)

Messerschmidt v. Millender, 565 U.S. 535 (decided February 22, 2012): police searching for any and all firearms, and for gang paraphernalia, during warrant to search for sawed-off shotgun were entitled to qualified immunity (warrant not overbroad because these were reasonable things to search for in connection with suspected crime of past shooting of girlfriend in retaliation for her calling police)

Oregon v. Guzek, 546 U.S. 517 (decided February 22, 2006): defendant can present alibi evidence at sentencing but not if it’s inconsistent with conviction (here, testimony of mother which the jury had necessarily rejected in coming to its guilty verdict)

[SRG2]

One can guess that Thomalito would dissent in Buck, and one would be right. Contrary to Thomas' usual practice in one of his dissents, he doesn't spell out the crime committed in graphic detail. Instead, he criticises the majority for doing their job - which AFAIC means when the facts are as egregious as they are in Buck, find any legal way you can to provide the appellant with a remedy.

[Frank Drackman]

Race-ist much?

[JoeFromtheBronx]

Whalen v. Roe had some helpful discussion, fairly common in Stevens' opinions, covering wider principles. He summarizes the nature of the right to privacy, including its multiple aspects.

Peter Irons' original collection of excerpts from oral arguments (it was a collection of cassette tapes) included Joshua DeShaney v. Winnebago County along with comments from his lawyer.

[Dan Schiavetta]

Thanks!

[A Japanese Student]

CNN reports that prison guards in New York are striking, and the Governor sent the National Guard in response. Would be funny if they tried to evict the guards from their worker dorms.

(I have a backlog of cases to post here, please be patient...)

[Frank Drackman]

Prison Guards(they prefer “Correctional Officer”)people who choose to spend 1/3 of their life in Prison

[Dr. Ed 2]

168 hours in a week -- 40 hours is less than 1/4.

[Frank Drackman]

So you’re an expert in Correction Officer hours also? At least in Georgia they’re way undermanned (can’t understand why, 40K a year to risk your life every second of your work day) and most work overtime

[JoeFromtheBronx]

Maybe, we will have another Third Amendment dispute.

https://en.wikipedia.org/wiki/Engblom_v._Carey

[Syd Henderson]

It's never been incorporated nationwide though it really should be and likely would be if a case ever comes before the Supreme Court. Engblom v. Carey is only binding in the states covered by United States Court of Appeals for the Second Circuit, i/e New York, Connecticut and Vermont.

[Dr. Ed 2]

See Boston Police Strike (1919)
https://en.wikipedia.org/wiki/Boston_police_strike

Calvin Coolidge was Governor and he fired them all on the grounds that there is no right to strike against the public interest -- ever.

It got Coolidge the VEEP nomination with Harding, who died, making Coolidge the President. Was sworn in by the light of a kerosene lamp by his father -- both then went back to bed.

[Dr. Ed 2]

https://www.nydailynews.com/2025/02/21/ny-state-prison-guards-strike-is-personal-town-near-canadian-border/

[SRG2]

Sotomayor's dissent in Messerschmidt is very clear

https://supreme.justia.com/cases/federal/us/565/535/

[Dan Schiavetta]

Indeed. The Court would have the police thinking that the boyfriend’s attack was caused “not by the souring of his romantic relationship with Kelly but instead by a desire to prevent her from disclosing details of his gang activity to the police,” but Sotomayor points out that the police themselves considered it strictly a domestic dispute.
“Q: So as far as you knew, it was just sort of a spousal-abuse-type case where the perpetrator happened to be in a gang, right?
“A: Correct.
“Q: So you didn’t have any reason to believe that the assault on Kelly was any sort of gang crime, did you?
“A: No.”

[JoeFromtheBronx]

I think Kelo v. New London was correctly decided.

I understand that some people on both sides have pushed back on that. I would not mind if the opinion was limited or even overruled. I still think it was appropriately decided.

At the time, I thought the best argument was a Fourth Amendment one, regarding seizing of a private home. This along with the felt failure of the specific economic policy ("little pink house") provided a lot of the emotional opposition to the opinion.

The Taking Clause specifically is not a grant of power. It limits power to the degree it requires seizure of private property for public use to be compensated. Seizure for private use is a separate problem of substantive due process.

If we interpret the clause to implicitly only allow takings for public use, which it has been, the opinion is still not incorrect. [As Justice Thomas notes, there still needs to be a grant of power that justifies a seizure. The clause itself doesn't explicitly give it.]

I understand the strong arguments against it, but they amount to policy concerns. Like the specter of a "life term" for Cabinet offices cited last time, it amounts to horribles -- if the state could do that there are no limits!

The seizure was part of a wider development plan. It was not simply about seizing one person's home. Kennedy's concurrence noted various safeguards in place to avoid pretextual favoritism.

In addition to creating jobs, generating tax revenue, and helping to “build momentum for the revitalization of downtown New London,” the plan was also designed to make the City more attractive and to create leisure and recreational opportunities on the waterfront and in the park.

The property involved was not merely given to private parties for personal use. The seizure was for "public use." The public would "use" the property to obtain these benefits.

Different states allowed economic takings before this opinion. It is fine if the government wants to provide limits. The Constitution, however, does not provide those demanded by the dissent.

[The Margrave of Azilia]

I think that business development, and my leisure, would be promoted by having a cannabis cafe on your property.

Move out, sucker, it's almost 4:20.

[Brett Bellmore]

That's an interpretation of the takings clause that's very clever, in fact, the phrase is "too clever by a half". It's like saying, "The 4th amendment limits when warrants can be issued, but doesn't technically say you need one to conduct a search."

[David Nieporent]

It's like saying, "The 4th amendment limits when warrants can be issued, but doesn't technically say you need one to conduct a search."

And as I've replied other times you've said that, that statement is correct. Which is why there are numerous scenarios where warrantless searches are permissible.

[Frank Drackman]

So the government can take a persons home and give it to another person just so the other person can turn it into a business that pays the government more Tax Shekels?
Even worse is they get to decide how much your home is worth, and The “Rest of the Story”(ht P. Harvey) the Pink Hotel, Boutique and Swinging Hot Spot never got built
Amazing how Sutter objected when NH tried to take his Shithole of a Cabin (who was his decorator, Ted Kazonski??)

[Brett Bellmore]

Yes, Nieporent, I'm quite aware that the judiciary have granted the government numerous exceptions to, and workarounds for, our constitutional rights. I'm not obligated to treat them with the respect they're not due.

[A Japanese Student]

Since I didn't post for the last two days, I'm posting now. Also includes the only summary court case with constitutional significance.

Supreme Court Justices Retention Election Case (Grand Bench, decided February 20, 1952): Counting blank ballots at Supreme Court Justice Retention Election as approval does not violate the Constitution (as you can imagine, this makes it impossible to recall a justice - the highest disapproval was 15.17%)

Pastoral Activities Case (Kobe Summary Court, decided February 20, 1975): Pastor found not guilty of harboring fugitive; allowing teenage suspects (charged for violent protest with Molotov cocktails) to stay at church to provide pastoral care deemed "act in the pursuit of lawful business", one of the defenses applicable to all charges (one of the few summary court cases you learn in law school; the students eventually surrendered themselves; the Government did not appeal) (opinion is criticized for its findings about Christianity, which some call very inaccurate)

Local Tax Act Case (Grand Bench, decided February 21, 1962): Incitement of tax evasion is against "public welfare" and outside the protection of free speech

Kanazawa City Hall Case (Third Petty Bench, decided February 21, 2023): Upheld denial of permit for the ground in front of city office because it gives the appearance of a city endorsing a particular political opinion; in dissent, Justice Uga (who is the only reliably liberal person on this Court) says the ground is a public forum, not part of office building as majority claims

Lockheed "Marubeni Route" Case (Grand Bench, decided February 22, 1995): Testimony obtained under 18 USC 6001 (Federal immunity statute) not admissible in Japanese courts; Prime Minister has the authority to give advice to other ministers (here, Transportation Minister, who was ruled to have authority to recommend purchase of specific aircrafts) (authority of individual is important here, because it is an element of all bribery offenses)

[Dr. Ed 2]

Local Tax Act Case (Grand Bench, decided February 21, 1962): Incitement of tax evasion is against "public welfare" and outside the protection of free speech

Schenck v. United States -- incitement of WWI draft evasion.
Written by a Civil War veteran.

https://en.wikipedia.org/wiki/Schenck_v._United_States

Mostly reversed 50 years later.

[A Japanese Student]

I would be very surprised if that becomes the law in Japan. Courts have been consistent in rejecting free-speech challenges.

Japan criminalizes many acts of incitement. Incitement of drug offense (including possession) is punishable by up to 3 years, though actual applications seem to be limited to pandering (not protected even in the US, United States v. Williams, 553 US 285 (2008)). Last year they criminalized incitement of firearms offenses as a response to the assassination of Shinzo Abe (where the perpetrator allegedly used improvised shotgun).

[Frank Drackman]

So JS, you've got the inside Slant on Jap courts, any chance Abe's Assassin gets the Noose? and why no trial 2+ years after the Crime?, that's supposed to be what we procrastinating Amuricans do, you guys are supposed to be efficient. Can't find the link, but a Navy Medical Journal had a great article by the Dentist who fitted Tojo for dentures, too bad he only got a few weeks to enjoy them.

Frank

[A Japanese Student]

Definitely not the noose. At most life (with parole, since there is no life-without-parole in Japan), but I am not surprised if the sentence was 20 years in prison.

First, there's a similar case where the Supreme Court upheld reversal of death sentence. Yakuza member shot and killed the mayor of Nagasaki, who was running for re-election. In the decision (Jan. 16, 2012), the Court noted that only one person was killed (which, in Japan, usually precludes death sentence absent special circumstances). It also noted that the murder was not due to economic or political motives.

And the defendant alleges - and the public (including jurors) have learned - that he suffered from poverty due to his mother donating the family's entire assets to Unification Church. (Here's a good video: https://www.youtube.com/watch?v=wFn6gWYMDpo) That's a good mitigating circumstance.

His trial is delayed due to mental health evaluations and extensive pretrial conferences. NHK reports that the trial would begin this summer at the earliest. Once it happens however, it would be very quick (compared to ordinary Japanese bench trials, which can take months).

[Ama Valde Intellectum]

Get the Amicus Curiae submission of Jane Jacobs and all discussion will end.
"Jacobs argued that economic takings gave powerful people the ability to exploit eminent domain. She also believed that the government's top-down approach to development was contrary to her ideas of organic development. "
I doubt there was ever a more LIbertarian analysis of Kelo than hers.

THE BRIEF SAYS
Throughout her career, Ms. Jacobs has emphasized that the use of eminent domain for the ostensible purposes of “urban renewal” and “economic development” usually serves to benefit powerful private interests at the expense of the poor and working class communities it is supposedly intended to help.

Far from furthering their supposed goal of promoting economic growth, development condemnations often inflict economic and social harms that far outweigh any possible benefits. Moreover, the use of eminent domain is not necessary to promote legitimate development projects because private developers have a variety of tools available to overcome the ‘holdout’ problems that might otherwise prevent projects from going forward.

Even condemnations justified by the need to eliminate urban “blight” have caused extensive social harm, displacing hundreds of thousands of people.

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I saw this when I lilved in NJ --- Please look it up--when the casinos for Atlantic City passed it was said to be to help the elederly and poor and aged (and people thought that was a nice idea) but within weeks, the property values around the announced sites skyrocketed putting the elderly the poor and the aged out on the streets.
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