Today in Supreme Court History: March 18, 2008

3/18/2008: District of Columbia v. Heller argued.

Comments

[Dan Schiavetta]

Gideon v. Wainwright, 372 U.S. 335 (decided March 18, 1963): “If you can’t afford a lawyer, one will be appointed for you.” (In high school I saw a re-enactment of this case with the actual Mr. Gideon playing himself. He was a gutsy guy. I recommend “Gideon’s Trumpet”, by Anthony Lewis.)

The Antelope, 23 U.S. 66 (decided March 18, 1825): Marshall: slave trade is o.k. except when specifically prohibited; here, allows return of Spanish slaves but not those captured on American vessel (which were returned to Africa later; American overseas slave trade had been abolished in 1808)

The Plattsburgh, 23 U.S. 133 (decided March 18, 1825): another case forfeiting a vessel violating slave trade restrictions even though not outfitted for journey yet

Tharpe v. Ford, 139 S.Ct. 911 (decided March 18, 2019): Court denies cert of attempted opening of 1991 murder verdict based on racist views of one juror; Sotomayor agrees with denial, which is based on procedural grounds, but laments the procedural roadblocks to hearing such an obviously meritorious claim (somehow this juror candidly discussed his views with lawyers for both sides, and even signed an affidavit -- he repeats what Chris Rock said about “black folks v. n*****s” but goes way beyond that -- it has to be read to be believed) (Tharpe died of natural causes on death row in January 2020)

Southeastern Productions v. Conrad, 420 U.S. 546 (decided March 18, 1975): “Hair”, the “tribal love-rock musical” (as it was described in my time) could not be banned without procedural safeguards (no unbridled discretion by censor, full and fair hearing, and opportunity for prompt judicial review) (to me the highlights were “Frank Mills” and “Good Morning Starshine”, showing an unashamed, childlike delight in things, unafraid of mockery -- it takes courage to be like that, /no sarc)

Fay v. Noia, 372 U.S. 391 (decided March 18, 1963): habeas petition can be heard despite failure to abide by state rule requiring exhaustion of state remedies (limited by Wainwright v. Sykes, 1977, which held that failure to abide by state rule that objection was to be made at trial or be waived was independent state ground for denial which precludes federal court intervention)

Young v. Harper, 520 U.S. 143 (decided March 18, 1997): prisoner released on “pre-parole” program (designed to reduce overcrowding in prison) was entitled to due process protections before revoked and sent back to prison (opinion by Thomas on this “narrow question”)

Dalton v. Little Rock Family Planning Services, 516 U.S. 474 (decided March 18, 1996): striking state law prohibiting state funding of abortions “except to save the mother’s life” if combined with federal funds because Medicaid allows also for rape/incest (Hyde Amendment); holding can’t be in perpetuity because in the future federal rule might change

United States v. Gagnon, 470 U.S. 522 (decided March 18, 1985): Defendant was observed drawing sketches of the jury during trial. O.K. to have in-camera hearing with one juror who was concerned about this, attended by other counsel, and artistic defendant waived his right to be present by not invoking that right (did he even know he had that right?). OT, but I giggled out of my theater seat when my girlfriend and I saw this juror-with-a-pen scene in the 1990 film "Ernest Goes to Jail", https://www.youtube.com/watch?v=B8pW EUZKIds -- she was looking around and hoping no one would see me, I suppose like Ernest himself, who turns out to be a dead ringer for the real killer!) (or when he goes on a date with a fellow bank employee after being “magnetized” by the floor polisher, https://youtu.be/fp0Ec-yZ0EU)

Burns v. Alcala, 420 U.S. 575 (decided March 18, 1975): AFDC not required to provide benefits to unborn children; “dependent child” under statute obviously meant an individual already born (overruled by Dobbs?)

[apedad]

In Young v. Harper, I agree with the Court's (unanimous) decision, but - man - the Oklahoma Pardon and Parole Board should have never allowed Harper to participate in the pre-parole program.

"In October 1990, after reviewing respondent Ernest Eugene Harper's criminal record and conduct while incarcerated, the Pardon and Parole Board simultaneously recommended him for parole and released him under the Program. At that time, respondent had served 15 years of a life sentence for two murders."

https://supreme.justia.com/cases/federal/us/520/143/

The decision only states that Harper was entitled to procedural due process safeguards so I wonder if OK reviewed his case appropriately.

[A Japanese Student]

Any part of Fay not overruled by Wainwright is probably gone by Coleman or AEDPA.

[Dan Schiavetta]

yes

[SRG2]

Sotomayor's observations in Tharpe make clear how process is so much more important than justice in the American legal system.

[apedad]

Dang, I can't find a clip of the SNL Garrett Morris interview with Civil Rights activist Julian Bond (playing himself) where Bond states that light skinned blacks are smarter than dark skinned blacks.

[Jerry B.]

https://www.dailymotion.com/video/x2m6cv0

[apedad]

Bingo! Thanks.

[Dan Schiavetta]

Julian Bond was o.k. but about as animated as a rock. On "American's Black Forum" he looked like a mannequin about to fall off that stool.

[Stupid Government Tricks]

Ritual over justice.

[SRG2]

Precisely so.

[apedad]

But in a society, how do you get to justice without ritual?

Feels?

[SRG2]

The issue is not that, the issue is that ritual or process become more important than justice. If all the rituals are followed and processes are complied with, the result may still be unjust, and in the US system, typically that rituals and processes have been properly carried out is enough to bar any considerations of justice.

Worse, some legislation, notably AEDPA, is designed - fapp intentionally - to make justice more difficult to achieve.

[Dan Schiavetta]

I'm reminded of what Garry Wills said in his book "Certain Trumpets: the Call of Leaders". He compared different kinds of leadership, such as Constitutional, Artistic, Charismatic, Traditional, Religious, etc. He said that Constitutional leadership, bound by its emphasis on rules, often becomes dithering. While Charismatic leadership, dependent on the leader's whims, often becomes "strange". We are currently seeing the transition from one to the other.

[apedad]

You addressed that ritual 'may' lead to injustice but you didn't answer the question.

How do you get to justice without ritual?

[SRG2]

I don't know and so i didn't answer. But I wonder why you seem more concerned about that than about the US's prioritising ritual and process over justice.

[Thought about __ all my life]

The Sotomayor who said : " "We have over 100,000 children, which we’ve never had before, in serious condition and many on ventilators.”" --- it was 5000 !!!!
Yeah, almost always WRONG

[SRG2]

Why is she wrong here?

[Thought about __ all my life]

Three reasons will suffice
1)"Although the evidence established his guilt, the reliability and fairness of his death sentence was tainted by the disturbing racist beliefs held by one of his jurors." HE DID KILL SOMEONE. I myslef would not go for the death sentence necessarily but dragging in race just obscures that 'he did kill someone"

2) Courts have repeatedly upheld convictions and allowed executions to go forward despite evidence of illegal racial discrimination.

In 2016, the State of Georgia executed Kenneth Fults, a Black man who challenged the legality of his conviction and sentence after it was established that one of the jurors held deeply racist views.

3) THis is just her being 'above the court' : “Court decisions stand, whether one particular person chooses to abide by them or not, it doesn’t change the foundation that it’s still a court order that someone will respect at some point,” she said. “That’s the faith I have in our system.”

[SMP0328]

Gideon v. Wainwright, 372 U.S. 335 (decided March 18, 1963): “If you can’t afford a lawyer, one will be appointed for you.” (In high school I saw a re-enactment of this case with the actual Mr. Gideon playing himself. He was a gutsy guy. I recommend “Gideon’s Trumpet”, by Anthony Lewis.)

The book is much better, and gives much more detail, than the movie. The movie gives a general overview of what happened, while the book gets into the nuts and bolts of the story.

[Dan Schiavetta]

IIRC it was a very short movie shown to high school students, so it could only go into so much detail.

Also IIRC Gideon was a career criminal and the book left it unclear whether he was factually guilty of this crime. But Lewis did a good job explaining why the right to counsel is important for everyone.

[SMP0328]

Also IIRC Gideon was a career criminal and the book left it unclear whether he was factually guilty of this crime.

Gideon claimed to be innocent; obviously, we can never know for sure. His attorney was able to establish reasonable doubt, and thereby get an acquittal, by convincing the jury that the prosecutor's key witness may have been a lookout for a group that robbed the poolhall.

[JoeFromtheBronx]

The book and film naturally would have different approaches.

Fay Wray, of King Kong fame, has a small role in the film.

[A Japanese Student]

Japan's postconviction relief law, in case of actual innocence, has very little procedural bars compared to AEDPA. Yet it has failed to provide relief - perhaps because adequate postconviction relief requires not just the absence of procedural bars, but procedural safeguards. Brady is a good example.

American habeas, however, does allow claims related to procedural defects (e.g. ineffective assistance of counsel) or legal claims. Only the Prosecutor General can seek to overturn convictions on legal grounds (such as new precedent), and procedural claims (aside from things like perjury) are not valid grounds.

If all things go well, the legislators will introduce a bill this year (which has a good chance of passing), lowering the bar for getting convictions overturned; it will allow the judge to compel the disclosure of exculpatory evidence, and make grant of postconviction relief unappealable. (They can still appeal the inevitable acquittal they get after retrial if publicity allows.)

[A Japanese Student]

Mr. Gideon is one of the most well-known pro se petitioners before SCOTUS. When I browse the in forma pauperis docket, I sometimes come across a PDF filing with slower than usual download speed - and I instantly know it was a pro se filing (because they're scanned). Most get denied with no response. Sometimes a justice requests a response, and the reply brief comes with an attorney's name. The Court does grant a pro se petition, once or twice a decade, I believe. (Let me actually check the record...)

[A Japanese Student]

Okay, here are the pro se cert. petitions granted for plenary review that I could find:

- Lomax v. Ortiz-Marquez, 140 S. Ct. 1721 (2020) (affirmed)
- Banister v. Davis, 140 S. Ct. 1698 (2020) (reversed and remanded)
- Welch v. United States, 578 U.S. 120 (2016) (vacated and remanded, though this one was pure luck)
- Holt v. Hobbs, 574 U.S. 352 (2015) (reversed and remanded)

[SRG2]

Banister won 7-2 at SC. Guess the two dissenters.

Welch won 7-1. Guess the sole dissenter.

[JoeFromtheBronx]

People can check out petitions on the Supreme Court website and some are handwritten & sort of out there.

One pro se petition was in the name of John Fellers.

https://graphics8.nytimes.com/packages/pdf/us/20100208-bar-fellers.pdf

It was written by jailhouse lawyer/bank robber Shon Hopwood. SCOTUS took the case & Fellers won 9-0.

Hopwood later wrote a book & became a lawyer. Unfortunately, he more recently got in trouble related to alleged domestic abuse.

[JoeFromtheBronx]

Paul Clement represented the U.S. government during the oral argument of D.C. v. Heller. He supported intermediate scrutiny, noting certain benign federal regulations would be blocked without it. Roberts was wary:

Well, these various phrases under the different standards that are proposed, "compelling interest", "significant interest", "narrowly tailored", none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard.

Isn't it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can't take the gun to the marketplace and all that, and determine how these... how this restriction and the scope of this right looks in relation to those?

I'm not sure why we have to articulate some very intricate standard.

I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up.

But I don't know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?

Roberts later framed things this way in his United States v. Rahimi opinion [removing citations]:

As we explained in Bruen, the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition. A court must ascertain whether the new law is “relevantly similar” to laws that our tradition is understood to permit, “apply[ing] faithfully the balance struck by the founding generation to modern circumstances.” Discerning and developing the law in this way is “a commonplace task for any lawyer or judge.”

The Oyez.com website has opinion announcements of the gun cases, including dissents from the bench. Souter talks about his support of Stevens' Heller dissent here:

https://www.youtube.com/watch?v=yVJhXQB1TAk

[Thought about __ all my life]

On Heller remember how this wonderful decision happened.

because a woman wrote a book on the actual history of the right and DESTROYED all opposition. Scalia quoted it 3 times and gave her a lot of credit.

[JoeFromtheBronx]

It happened because Alito replaced O'Connor.

Roberts replacing Rehnquist might have mattered too.

The wider reason was that there was a general movement (not one person) to support the winning side & a majority formed to support it. The same occurred with same-sex marriage.

[JoeFromtheBronx]

Chief Justice Roberts responded after Trump said on social media that U.S. District Judge James E. Boasberg should be impeached for blocking the administration’s efforts to deport Venezuelan migrants without due process.

Trump criticized Boasberg, the chief judge of the U.S. District Court for the District of Columbia, as a “Radical Left Lunatic of a Judge” and wrote: “This judge, like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!!!”

Roberts:

"For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose."

https://www.washingtonpost.com/politics/2025/03/18/trump-presidency-news/

Roberts probably should have followed the "DFTT" principle. As to two centuries of history, compare his opinion in Trump v. U.S..

[JoeFromtheBronx]

[covered by a separate entry]

[A Japanese Student]

Customs Act Case (Third Petty Bench, decided March 18, 1958): Vacated and remanded because the lower court committed Article 400 error (which I covered numerous times here already; i.e. reversing acquittal and convicting defendant on appeal without examining additional evidence)

Public Offices Election Act Case (Third Petty Bench, decided March 18, 1969): Election campaign need not be the main subject of a "document used for electioneering"; held unlawful the distribution of a document named "List of Party A's Tokyo Prefectural Assembly Candidates", which lists each candidate's name, age, and district; while distribution as a preparation for lawful campaigning is lawful, seeking endorsement is campaigning itself and not preparation

Kidnapping for Transportation out of a Country Case (Second Petty Bench, decided March 18, 2003): International parental kidnapping can be punished under general international kidnapping statute (carrying 2-year "mandatory minimum")

Forcible Obstruction of Business Case (First Petty Bench, decided March 18, 2013): Requiring the defendant to reveal the defense in pretrial conference does not constitute self-incrimination

Personal Information Disclosure Case (First Petty Bench, decided March 18, 2019): Heir cannot request disclosure of deceased person's information under Personal Information Protection Act; the data relates to the deceased, not the heir

Kokoku-Appeal to Order Compelling Presentation of Evidence (First Petty Bench, decided March 18, 2021): Telecommunications carrier can claim privilege against documents identifying its users regardless of the contents transmitted (Code of Civil Procedure §197(1)(ii) enumerates persons that can claim a privilege - some of them should be familiar to American lawyers, such as doctors and attorneys. Priests can also claim privilege. Although common carriers are not listed, the Court held this to be non-exclusive, and citing Telecommunications Business Act §4(2), which requires confidentiality of handled data, it ruled that they have professional obligations similar to that of doctors or attorneys.) (I also want to address a question: what is a "telecommunications carrier"? They must 1) offer a service that 2) carries in substantially unmodified form 3) electronic transmission 4) to a specific recipient 5) for profit. Social media is generally not a common carrier because it fails test 2 and 4; here, the carrier was a email provider.)

Guidance-Required Drug Dispensing Case (First Petty Bench, decided March 18, 2021): Requiring newly-marketed OTC drugs to be dispensed in person (and not by Internet) does not violate Article 22 (right to choose occupation) (prior case (see January 11) ruled that a regulation prohibiting online sale of most OTC drugs exceeded statutory authority; since then a new statute established a narrower category of drugs called "Guidance-Required Drug" and allowed other drugs to be sold online)

Yamagata University Case (Second Petty Bench, decided March 18, 2022): Labor Relations Commission may order an employer to engage in collective bargaining in good faith even if they know no agreement would be reachable

[JoeFromtheBronx]

Jessie Hoffman was executed.

The liberals, without comment, would have granted a stay.

Gorsuch, with a short dissent, would have granted a stay and cert regarding a religious liberty question.

https://www.supremecourt.gov/opinions/24pdf/24a893_b97c.pdf

They didn't provide a final decision on the cert petition before the execution. I'll just leave the link:

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/24-6778.html

[A Japanese Student]

Not sure what they're planning. Are they going to Munsingwear the petition, perhaps?