Today in Supreme Court History: March 11, 1936

3/11/1936: Justice Antonin Scalia's birthday.

J

Comments

[Frank Drackman]

Died too young, and to think he was almost succeeded by Merrick Garfield

[Thought about __ all my life]

He was sitty and smart but he had shakey connection between principles and right and wrong. Often made the right decision but just could not back it. Alito and Thomas surpass him there.
He was right about gays, about marriage, about abortion, most everything. But his opinions did not have the laser connection to first principles.

[Dan Schiavetta]

Walker v. Wainwright, 390 U.S. 335 (decided March 11, 1968): defendant can seek habeas relief as to conviction as to one charge (here, murder, allegedly coerced confession) even though due to not appealing other charge (aggravated assault) he would still be in prison if relief granted

Lee v. Washington, 390 U.S. 333 (decided March 11, 1968): striking down on Fourteenth Amendment grounds Alabama statute requiring segregation in prisons

Oetjen v. Central Leather Co., 294 U.S. 720 (decided March 11, 1935): Court won’t rule on seizure of land by new Mexican government (which seized power in 1913 coup); should sue in Mexico (good luck with the coup-installed judiciary!)

Martin v. District of Columbia, 205 U.S. 135 (decided March 11, 1907): upholds Act of Congress as to compensation due when land is taken to widen street, even though the statute, the trial judge, and the jury were confused as to how to calculate

Henry v. A.B. Dick Co., 224 U.S. 1 (decided March 11, 1912): using ink other than that specified for rotary mimeograph violated mimeo patent (overruled by Motion Picture Patents Co. v. Universal Film Mfg. Co., 1917) (my crisis center in the 1980’s had a rotary mimeo -- donated by a volunteer, a bona fide CPUSA member who used it in her Bolshevik leafletting days -- we inked it up with an old T-shirt and spun away, our fingers inky for days afterward)

The Argo, 15 U.S. 287 (decided March 11, 1817): “De bene esse” depositions create testimony admissible in court despite the witness being available for trial. I have done these in New Jersey, with examining physicians. Here, in an original jurisdiction case, Marshall agrees with the Attorney General (and disagrees with Daniel Webster) in holding that the Judiciary Act of 1789, allowing for d.b.e., does not apply to proceedings in the Supreme Court; testimony of non-parties can only be taken in a Court proceeding (I assume in front of a Special Master).

United States v. Int’l Union United Auto, Aircraft & Agricultural Implement Workers of America, 352 U.S. 567 (decided March 11, 1957): Corrupt Practices Act (18 U.S.C. §610) supersedes First Amendment and effectively prohibits using union dues to pay for political TV ads (largely overruled by Citizens United, 2010)

Ceballos v. Shaughnessy, 352 U.S. 599 (decided March 11, 1957): alien eligible for deportation because did not report for military duty (violation of 8 U.S.C. §1426); applied for exemption but did not follow through

Pence v. United States, 316 U.S. 332 (decided March 11, 1942): Government refused to pay on life insurance policy, alleging that the insured (a physician) had lied on his application for reinstatement after policy was suspended due to not paying premium; specifically he stated that he had never been treated for “any disease of the throat, heart or stomach”. A parade of evidence was introduced showing that he had all kinds of things wrong with him. The widow was not aware of this and he had led an active life. She won a jury verdict. Here the Court holds that fraud was so overwhelming that the Court of Appeals was correct in holding that the Government’s motion for a directed verdict should have been granted.

Alaska Packers Ass’n v. Industrial Accident Commission, 294 U.S. 532 (decided March 11, 1935): Hired in California to work in Alaska, to return after end of salmon canning season. Agreed to be bound by Alaska law (which prohibited worker’s compensation). Injured in Alaska. Court holds that California statute ordering employer to pay compensation does not violate Due Process or Full Faith and Credit clauses.

[JoeFromtheBronx]

He was sitty and smart but he had shakey connection between principles and right and wrong.

Are we missing a letter in the first word?

Often made the right decision but just could not back it. Alito and Thomas surpass him there.

Alito is more results-oriented than Scalia. Thomas is more radical.

He was right about gays, about marriage, about abortion, most everything. But his opinions did not have the laser connection to first principles.

Not sure about "laser connection," though he did say he was an originalist but "not a nut."

He was wrong about gays, marriage (at least part of the time), and abortion. His ridicule of Kennedy was him at his most crude, though in Obergefell, Roberts wasn't much better.

On that, I just re-read William Eskridge's well-argued 1990s work, The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment.

Scalia is also honored for his long time friendship with Ruth Bader Ginsburg, who found him very amusing.

[Dan Schiavetta]

The title of the Eskridge book is apt. For years (at least from what I had read) gay people did not want marriage. That changed in the 1990's.

[JoeFromtheBronx]

The author (who is gay) argues gays were split on marriage.

[Dan Schiavetta]

At the time, that was true.

[A Woman of No Importance]

Ah, but the reason for the split may not be what you think. The opposition was from radical leftist gays who were opposed to marriage altogether. They didn't want gays mainstreamed into society; they wanted to blow up society. But I don't think they ever represented more than a handful of gays.

I ran into the same thing years ago when I handled a gay military case in which an ex-Navyman was challenging the then-existing ban on openly gay soldiers and seamen. I remember speaking at events and being harshly criticized during the question period by leftists who were opposed to even having a military and thought I was a terrible person for trying to open it up for gays to serve rather than working to shut it down altogether. Again, I don't think that view had more than a handful of adherents but it was there.

And it's kind of funny that for all the anti-gay propaganda about how gay rights is cultural Marxism and gays are wildly rampant in their lifestyle, most of the gay rights litigation has been brought by gays who want stable families, want to serve their country in the military, want to be part of mainstream society. In other words, people who want to step up to the plate and take responsibility for themselves, their families, and their society. There really has not been that much litigation, or even movement support for, the wild and crazy things one would think gays would be agitating for if the propaganda were true. Of course, you can always find fringe extremists, but they are the fringe.

[JoeFromtheBronx]

The book discusses the split, and yes, the first paragraph covers a chunk of the discussion.

[Dan Schiavetta]

Partly it was because AIDS subsided and ACT-UP-like antics were no longer the public face of "gay America". Being gay got normalized.
Clinton made a promise during the 1992 campaign to allow gay people to openly serve in the military which didn't cause much of a stir (though it blew up when he actually tried to put it into practice).

[Hugo S. Cunningham]

> gays ... want to be part of mainstream society.

I first read in an article by Akhil Reed Amar a suggestion that the Second Amendment right "of the people to ... bear arms" implies a right for members of disfavored groups (Blacks, gays, etc) to join and serve in the military on the same basis as members of more favored groups.

[Dr. Ed 2]

Dan, (1) if gay marriage exists, society can insist that gays be married -- much like it once did heterosexual couples. Living with her boyfriend was once grounds for a woman not to be allowed to join the bar.
(2) If the government has the power to grant a license, it has the power to revoke it. E.g. driver's license.

My argument was if gays -- many of whom were old enough to remember when being gay was a criminal offense -- really wanted to give the government the power to say they couldn't cohabitate.

[Dan Schiavetta]

?
Unclear

[A Japanese Student]

Does revoking marriage license void a marriage that is already effective, though? I'm not familiar with American marriage licenses, but that does seem absurd.

(In Japan, marriage is just a form you file to the Government; no ceremony or license is required.)

[Dan Schiavetta]

My neighbors, two women, when they lived in California, got legally married, then their marriage became void with Proposition 8 in 2008, then it became valid again with the Obergefell decision.

[A Japanese Student]

Yeah, that did happen. (though, I think you meant Hollingsworth.)

[Dan Schiavetta]

Yes

I was tempted to make a joke to them about whether “living in sin” was more fun, but stopped myself. We hets sometimes don’t realize what was really at stake for them.

“It’s easy to appear smart. Just think of something stupid to say — and then don’t say it.” That was Sam Levenson, I think.

[SRG2]

Scalia's worst dissent TTBOMK, for its rank dishonesty, was in Edwards v. Aguillard.

The Louisiana legislators who passed the "Balanced Treatment for Creation-Science and Evolution-Science Act" (Balanced Treatment Act), La.Rev.Stat.Ann. §§ 17:286.1-17:286.7 (West 1982), each of whom had sworn to support the Constitution, [Footnote 3/1] were well aware of the potential Establishment Clause problems, and considered that aspect of the legislation with great care. After seven hearings and several months of study, resulting in substantial revision of the original proposal, they approved the Act overwhelmingly, and specifically articulated the secular purpose they meant it to serve.

i.e., if you can somehow find a form of words which provides a secular purpose, that's good enough for Fat Tony. After all, you've sworn to uphold the Constitution, so you must have been acting in accordance with it.

[apedad]

Sworn using a Bible no less!

[Dan Schiavetta]

“Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home.”

Therefore, the state can criminalize same sex behavior. Sounds reasonable to me!

[SRG2]

By the time Lawrence v Texas came along he was just an hysterical and embittered old man, fearful of teh gays, and generally acting like Endicott after he'd been slapped by Tibbs.

[SRG2]

I wrote this as part of an article I submitted to New Scientist:
--
Scalia’s dissent in Edwards was based not just on his distaste for Lemon but on a much more subtle idea, involving an end-run around the test itself. What he did was argue that the states knew what they were doing, and that as a matter of jurisprudence they must be presumed to be acting constitutionally. No state legislature intentionally violates the constitution, so if a legislature can show that it took evidence from both sides as to the religious nature or otherwise of creation science, or the unscientific nature of evolution, when it reached its decision as to the wording of any legislation, nothing more need be said.

Once a state legislature can claim that on the evidence they have heard, creation science or its rebranded Intelligent Design is genuinely science, it can assert that the legislation has a secular purpose by teaching the existence of alternative theories which by the evidence they have heard they deem to be scientific not religious; by the same token, once ID is deemed to be science the act requiring it to be taught does not advance a religion, and nor is there any entanglement. Scalia will inquire no further into the decision process, the relative strength of the real scientific evidence, the nature of the supporters, evidence of motives, etc. What he did in Edwards was prepare the ground for the next generation of creationist legislators to be just subtle enough in the legislative process to pass an act which will allow a Rehnquist/Scalia dominated Supreme Court to decide, “the legislature of Mississippi says it’s science, and that’s good enough for us”.
--
Well, Rehnquist and Scalia are dead, as is the Lemon test, and less subtlety will be needed.

[Krayt]

Skeptic mag, or maybe Skeptical Inquirer, had a big article going into details about the trial that put the final nail in the coffin for Intelligent Design. Most notably, it didn't deal with it as crypto religious creationism, but tackled it head on on its own claimed grounds: it's science, yo!

Short story, the guys who came up with ID, under oath, kept saying, nope, nope, nope, to evidences talking heads like to repeat.

[David Nieporent]

Kitzmiller, you mean?

[SMP0328]

Keep in mind that Edwards v. Aguillard was decided based on the Lemon Test, which has been abandoned. Scalia's position likely has more support on the current Court and the issue would be litigated under Kennedy's history-and-tradition standard. Which side would win is anybody's guess.

[bernard11]

Which side would win is anybody's guess.

Which indicates the level to which SCOTUS has sunk.

[SRG2]

I have thought for a while that now that Lemon has been dismantled, the fundies would go through all SC - and other -- cases that used the Lemon test and look for cases where they were now free to legislate their ignorance, and I have little doubt we'll see some creo B/S in sundry legislatures, soon.

I wonder whether we'll see Kitzmiller and Epperson junked.

[SMP0328]

Stone v. Graham (1980) is almost assuredly toast (that case bars Ten Commandment displays in public schools). The ultimate goal will be to get Engle v. Vitale (1962) and Abington School District v. Schempp (1963) overruled; Engle bars public school led prayer, Schempp bars public school led Bible readings. I don't want those decisions overruled but wouldn't be surprised if they were within 5 years.

[Dan Schiavetta]

If instead of the Ten Commandments a public school displays the Five Pillars of Islam, we’ll suddenly see Lemon revived.

[SMP0328]

Lemon is dead and it ain't coming back, but I could see a liberal public school district doing something like that if Stone v. Graham was overruled.

[Dan Schiavetta]

Or a district which is majority Muslim. There is the possibility of one, if not now then in the future.

We might see a frantic scaling back of Kennedy v. Bremerton, much like the Court had to run away from Bruen to get to the result in Rahimi.

[SRG2]

I would love to see someone appeal against some charge involving something in a public place by invoking Kennedy, as the SC has ruled that being on the 50 yard line in view of a crowd is not public.

[JoeFromtheBronx]

I thought when a legislature "overwhelmingly" passed something, it was suspect, as he suggested in a voting rights case.

[A Japanese Student]

Food Management Act Case (First Petty Bench, decided March 11, 1954): Consideration of prior conviction in sentencing does not violate Penal Code §34-2 (which says that a sentence of imprisonment "ceases to have effect" 10 years after release); the provision only applies to collateral consequences of conviction

Trespass, Obstructing Performance of Public Duty Case (Third Petty Bench, decided March 11, 1958): Opinions need not address the defendant's argument that everyone commits the charged offense and the defendant should not be punished

Election Dispute Case (First Petty Bench, decided March 11, 1965): Deviation from vote-counting protocol does not warrant voiding election when the violation was made in good faith, observers did not object, the ballots are kept intact, and no election fraud is found (here, observers were not able to inspect ballots deemed valid despite law allowing inspection of all ballots, and chief counting administrator let the subordinates count without any checks)

Public Office Election Act Case (First Petty Bench, decided March 11, 1976): POEA criminalizes public distribution of any documents for the purpose of supporting a candidate (save some exceptions, mostly for publicly financed ones). Here, the Court rules distribution to limited number of persons, who would then distribute them to the public, is a public distribution.

Certified Kokoku-Appeal to Order Staying Disciplinary Action (Third Petty Bench, decided March 11, 2003): Reversed grant of stay of attorney admonition; stay would not prevent public notice of disciplinary action (alleged to cause irreparable harm to reputation) because public notice itself is not part of the action (perhaps they should have sought preliminary injunction instead?)

Damage to Credibility Case (Third Petty Bench, decided March 11, 2003): Public confidence on quality of product is "credibility" whose fraudulent damaging is criminal; overruled Supreme Court of Judicature (pre-WWII Supreme Court) precedent that limited its application to spreading false rumors about ability to pay (defendant falsely claimed that orange juice was contaminated with bleach)

Gender Identification Change Marriage Requirement Case (Second Petty Bench, decided March 11, 2020): Prohibiting married people from seeking gender marker changes does not violate the Constitution (as doing so would make the marriage same-sex) (of course, they can file for divorce and try again; several lower courts held (technically as dicta) that the Constitution requires recognition of same-sex marriage, but it does not bind the Government, at least until the Supreme Court says so)