Today in Supreme Court History: April 16, 1962

4/16/1962: Justice Byron White takes oath.

Justice Byron White

Comments

[Dan Schiavetta]

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (decided April 16, 2002): striking down on First Amendment and overbreadth grounds Child Pornography Prevention Act of 1996 banning virtual pornography (despite fact that it’s difficult for law enforcement to discern virtual from real children) because it extends beyond bannable “obscenity” and limits free speech

Allen v. McVeigh, 107 U.S. 433 (decided April 16, 1883): no federal question presented by dispute over promissory note where promisor, resident in Alexandria, Virginia, had fled to Confederate territory to join his family after Union troops overran Alexandria and left his “notice of protest” there (probably because it wasn’t an international or even interstate issue -- the “Confederacy” was not recognized as a nation and it was the individual states who were at most “in rebellion” -- at least that’s my reading of this)

Genesis Healthcare v. Symczyk, 569 U.S. 66 (decided April 16, 2013): acceptance of Rule 68 offer of judgment makes case moot (seems obvious but this was a “collective” action under the Fair Labor Standards Act which the only named plaintiff wanted to continue despite settling her individual claim) (the offer was for full restitution); 5 - 4 decision

Burgess v. United States, 553 U.S. 124 (decided April 16, 2008): state penal offense punishable by more than one year is “felony drug offense” so as to invoke aggravated penalties of Controlled Substances Act even though state statute calls it a misdemeanor

Baze v. Rees, 553 U.S. 35 (decided April 16, 2008): three-drug lethal injection method was not “cruel and unusual punishment” despite increased risk of improper administration causing pain

Cooper v. Oklahoma, 517 U.S. 348 (decided April 16, 1996): state statute requiring that incompetence to stand trial be proved by clear and convincing evidence violates due process; preponderance of evidence is enough

Kay v. Ehrler, 499 U.S. 432 (decided April 16, 1991): pro se plaintiff in §1983 action who happens to be a lawyer is not entitled to attorney’s fees (what a jerk)

Kerr-McGee Corp. v. Navajo Tribe of Indians, 471 U.S. 195 (decided April 16, 1985): tribe can impose taxes on sale and lease of lands without approval of Secretary of the Interior

Rawlins v. Georgia, 201 U.S. 638 (decided April 16, 1906): due process not violated by statute excluding lawyers, ministers, doctors, dentists, and railway engineers and firemen from grand and trial juries (I imagine this statute is no longer in force -- but what was the impetus for it?)

Super Tire Engineering Co. v. McCorkle, 416 U.S. 115 (decided April 16, 1974): contention that state law making striking workers eligible for welfare interfered with right to bargain was still justiciable due to continuing existence of law despite settlement of strike; remanded to Third Circuit (which upheld the statute, 550 F.2d 903, cert. then denied)

DeVillier v. Texas, 601 U.S. 285 (decided April 16, 2024): State built concrete wall to prevent flooding of highway during heavy rainfalls (frequent in that area) which also acted to submerge plaintiff’s adjoining land. The opinion has before-and-after photos. Does the Takings Clause by itself allow an “inverse-condemnation” action to recover value of the unusable property? The Court doesn’t reach that question, holding that Texas law allows it.

[A Japanese Student]

When Japan introduced a jury-like system in 2009, they prohibited service by those in the legal profession. This includes attorneys, prosecutors, police officers, full-time employees of the courts or the Ministry of Justice, and law professors. The system was designed to bring legally-uninformed ordinary citizens' voices to a murder trial (for better or worse), so those in professions requiring legal knowledge were disqualified.

I don't know why they would exclude rail engineers, though - maybe because they didn't want them away from work?

[The Margrave of Azilia]

I certainly wish your country well with the jury experiment, and hope it doesn't get watered down as much as it is in the US.

[A Japanese Student]

To be sure, it is not designed for the protection of defendant's rights in mind. Because they decide the guilt and sentence in the same trial before the same jury, there is a real chance of victim-impact statements influencing the decision to convict the defendant (which, to my knowledge, Payne still doesn't allow). It's also a majority vote.

The system is not opt-out-able either; the defendant does not have a right to a bench trial/plead guilty and avoid sentencing by lay judges in qualifying cases, nor can the defendant seek saiban-in trial outside those cases. The law defines qualifying cases to be 1) capital and life cases (murder, robbery causing injury, arson, counterfeiting money, drug trafficking) and 2) offenses resulting in death with mandatory minimum (drunk-driving, manslaughter, etc.).

There are some safeguards - professional judges deliberate with the lay judges, so it's easy to catch improper influence being made. And for better or worse, the district court's factfinding can be overturned by the appellate court. (Japan does not recognize double jeopardy for appeals, on the theory that jeopardy does not terminate until appeals are exhausted.)

[The Margrave of Azilia]

Hmm...very interesting. Too bad about the majority-vote thing, though. And the definition of jeopardy.

[Noscitur a sociis]

Counterfeiting is punishable by life imprisonment?

[A Japanese Student]

Counterfeiting of Japanese currency, yes. Very skillful crime back when the Penal Code was enacted; very easy to commit when you have a photocopier.

It is also a crime, punishable by imprisonment of not less than three years (up to life), to counterfeit documents using the imperial seal. Not that people actually have a reason to counterfeit that (unless you want to fraudulently dissolve the House of Representatives, I suppose.)

[not guilty]

I have read (I don't recall where) that the Italian Mafia in the United States has had a strict prohibition against participating in counterfeiting money, because that would bring the full force of the federal government down against them. (That was long before the Racketeer Influenced and Corrupt Organizations (RICO) Act was enacted in 1970.)

The feds were willing to overlook vice and extortion, but counterfeiting was seen as a threat to the legitimacy of the government.

[Noscitur a sociis]

Rawlins v. Georgia, 201 U.S. 638 (decided April 16, 1906): due process not violated by statute excluding lawyers, ministers, doctors, dentists, and railway engineers and firemen from grand and trial juries (I imagine this statute is no longer in force -- but what was the impetus for it?

Most jury exemptions are based on the idea that the covered people’s jobs are more important than jury service. Holmes does say exactly that in the opinion:

The ground of omission, no doubt, was that pointed out by the state court—that the business of the persons omitted was such that they either would have been entitled to claim exemption or that probably they would have been excused. Even when persons liable to jury duty under the state law are excluded, it is no ground for challenge to the array, if a sufficient number of unexceptional persons are present. People v. Jewett, 3 Wend. 314. But if the state law itself should exclude certain classes on the bona fide ground that it was for the good of the community that their regular work should not be interrupted, there is nothing in the Fourteenth Amendment to prevent it.

[Dan Schiavetta]

Thanks!

[Frank Drackman]

"Whizzer" White, always wondered how he got that nickname. If he was a Fighter Pilot, it wouldn't be because he was fast.

[not guilty]

The nickname was from his days as a running back at the University of Colorado and in the NFL.

[JoeFromtheBronx]

I updated my link to Prof. Dorf's comment on prisons in the last thread, after he addressed a comment made in response.

C-SPAN provides some video of Justice Byron White, including him swearing in Justice Thomas. Here he provides some basic background on SCOTUS procedures and answers questions:

https://www.c-span.org/program/public-affairs-event/inner-workings-of-the-supreme-court/55418

Baze v. Rees continued the practice of the Supreme Court majority to reject challenges to specific execution procedures, except for procedural questions in a few cases.

Individual justices disagreed and wrote dissents regarding electrocution (Brennan), lethal gas (Stevens), hanging (Blackmun), and lethal injection procedures (multiple liberals wrote dissents).

Corinna Barrett Lain's book on the problems with lethal injection is due to be released this month.

https://www.amazon.com/exec/obidos/ASIN/1479832960/reasonmagazinea-20/

[Noscitur a sociis]

I updated my link to Prof. Dorf's comment on prisons in the last thread, after he addressed a comment made in response.

I added (late enough for no one to see it):

I see that Prof. Dorf has updated his post, apparently in indirect response to me. But now that I’ve done a bit more research, I think his argument doesn’t work—although I also think that it would be unlawful to force American prisoners to serve a sentence in another country for different reasons.

Prof. Dorf now notes that another statute, 18 U.S.C. § 4002, gives the attorney general authority to enter into contracts for up to three years with state and local jails (but not foreign ones). He reasons that the existence statute shows that “Congress understood it needed to write” authorization for these state and local contracts, and since there’s no equivalent authorization for foreign jails, it’s not allowed.

Here, I think Prof. Dorf is just wrong. Under 28 U.S.C. § 530C(a)(4), “the activities of the Department of Justice (including any bureau, office, board, division, commission, subdivision, unit, or other component thereof) may…be carried out through any means, including…through contracts, grants, or cooperative agreements with non-Federal parties”, unless otherwise provided by law. Section 4002 isn’t a grant of power: it’s a restriction on the general contracting authority DOJ otherwise enjoys.

Moreover, federal law expressly recognizes that some federal prisoners can serve their sentences in foreign prisons. Specifically, the attorney general is permitted “to transfer offenders under a sentence of imprisonment, on parole, or on probation to the foreign countries of which they are citizens or nationals”. 18 U.S.C. § 4102(3). And here is the real reason why sending Americans to a foreign prison would be illegal currently. There’s no equivalent provision for U.S. citizens to be removed, or for foreigners to be placed in a third country. Moreover, under 18 U.S.C. § 4107, a judicial officer needs to find that the prisoner voluntarily consents to the transfer before it can take place.

(Link for convenience: https://www.dorfonlaw.org/2025/04/wait-can-he-actually-do-that-part-14.html)

[JoeFromtheBronx]

The bottom line is the most important thing. If American citizens cannot be sent to a foreign prison, that is the basic concern.

As to the details, I still find that cloudy. § 4002 very well sounds like a "grant of power." It gives the Attorney General the authority to do something. Also, it looks to me that it was passed years before the other legislation. It "provided otherwise by law" something.

Since he is concerned with American citizens, a provision covering "foreign countries of which they are citizens or nationals" is of limited relevance to his overall argument.

But I'll leave it be and appreciate the further information.

[SRG2]

Thus Stevens: "It is unseemly—to say the least—that Kentucky may well kill petitioners using a drug that it would not permit to be used on their pets."

[The Margrave of Azilia]

*Most* people see guilty death-row inmates, not as pets to be coddled, but as criminals to be punished.

[SRG2]

Indeed, but decent people, given that the DP will be inflicted as a punishment, will nonetheless prefer that it be largely painless, or at least, carried out to minimise the pain.

[Dan Schiavetta]

We’ve already admitted to ourselves that executions are something civilized societies don’t do, but are afraid to be seen as weak, so we don’t admit it, even to ourselves. Hence the strange desire for less and less painful methods.

[The Margrave of Azilia]

So death penalty supporters support cruel punishment *and* support "less and less painful methods."

I'm tempted to ask if the Allies were civilized at Nuremberg, but that would be wrong.

[John F. Carr]

Who was the first justice to have an official color photograph?

[Dan Schiavetta]

Morrison Waite, in 1870. It looks like a black and white photo, but he was a very colorless person.

[Frank Drackman]

You have to remember, the whole World was Black & White back then, Color didn't come around until the 1940's and it was pretty grainy at first.

[Bored Lawyer]

So all those painters were having prophetic visions of the 1940s?

[JoeFromtheBronx]

https://www.supremecourt.gov/visiting/exhibitions/GroupPhotoExhibit/Section4.aspx

[A Japanese Student]

Today, the UK Supreme Court handed down an important ruling on transgender rights. BBC has a good report.

A couple of my thoughts:
- This, being a statutory interpretation case, can be easily overturned by the Westminster - should the political circumstances allow. I don't expect the Labour to have the courage to do so, though.
- I believe UK still is a member of ECHR; will Strasbourg step in?
- I don't understand how this ruling can work in practice, in a way that conforms to the prohibition of discrimination on the basis of gender reassignment. (I'm also confused as to how trans men would be handled under this decision.)

[Bored Lawyer]

Can you provide a link?

And I thought that since the UK has no formal constitution, any decision can be overturned by Parliament.

[A Japanese Student]

BBC coverage: https://www.bbc.com/news/live/cvgq9ejql39t

Yes, the Parliament does enjoy parliamentary sovereignty.

[Bored Lawyer]

Saw this comment over on National Review:

Rule Britannia, Britannia rules the waves!
Dudes never never never will be babes!

LOL

[Noscitur a sociis]

https://supremecourt.uk/uploads/uksc_2024_0042_judgment_aea6c48cee.pdf

[Noscitur a sociis]

As an aside, the U.S. Supreme Court goes a little overboard with its typography (requiring professionally typeset briefs is bad enough, hair spaces is just silly), but having a country’s highest court publishing something that looks like this is just embarrassing. (And I thought the First Circuit was bad!)

[Malika the Maiz]

One of my favorite jurists.

[Bored Lawyer]

Why?

[JoeFromtheBronx]

Yes, he had a range of interesting opinions. I disagree with him strongly on some issues, but he surely was "another kettle of fish" compared to some other justices.

(see the opinion announcement here; the transcript has a typo. In general, don't completely trust the transcripts of Oyez.com oral arguments. They repeatedly provide the wrong justice.)

https://www.oyez.org/cases/1990/89-839

[Dan Schiavetta]

Hunter S. Thompson called him a "closet fascist". He was certainly more conservative than liberal, one of the unusual examples of a Justice who turned out more right-wing than the President who appointed him. His opinions were called "slapdash", but I do admire his working case by case instead of coming in with a preset philosophy.

[The Margrave of Azilia]

Did anyone who *wasn't* Hunter S. Thompson diagnose White as a fascist?

"more conservative than liberal"

I'd call him "moderate."

[JoeFromtheBronx]

"more right-wing than the President who appointed him"

I'm not sure about that.

[Bob from Ohio]

Last decent Democrat appointed to the court.

[Alpheus W Drinkwater]

comment deleted

[A Japanese Student]

Damage to a Foreign National Emblem Case (Third Petty Bench, decided April 16, 1965): Affirmed conviction for "removing" foreign national emblem of defendant who placed "Republic of Taiwan" sign in front of ROC consulate's Blue Sky with a White Sun (to avoid free-speech concerns, the law is interpreted to only apply to flags or emblems owned by foreign government and not privately owned ones; right-wing activists seek to extend the law to Japanese national flags)

Public Offices Election Act Case (Second Petty Bench, decided April 16, 1965): POEA §146 bans sale of documents that support a candidate in addition to free distribution

"Gekkan Pen" Case (First Petty Bench, decided April 16, 1981): Private affairs of public figures (here, Soka Gakkai leader Daisaku Ikeda) can constitute matters of public interest (such that if the matter asserted is true it can be a defense to criminal defamation; conviction reinstated on remand, but case mooted by defendant's death during appeal)

Camostat Mesilate Case (Second Petty Bench, decided April 16, 1999): Experiment-or-research exception to patent infringement met where the experiment was conducted to get a generic drug approval (recent decision says this is true for non-generic drug as well; T-VEC Case, Intell. Prop. High Court, decided February 9, 2021, cert. denied July 26, 2021)

Certified Kokoku-Appeal to Order Denying Modification of Final Order (First Petty Bench, decided April 16, 2020): Final settlement agreed to in a conciliation under Hague Convention Implementation Act can be modified in extraordinary circumstances (appellant, who once agreed to return kid to Russia, sought to overturn the decree)

Grove Coop. Association Case (Third Petty Bench, decided April 16, 2024): Employer may invoke exception for difficulty in calculate off-site employee's working hours when the journal's accuracy is questionable