Today in Supreme Court History: February 22, 2005

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

 

Comments

[Frank Drackman]

Al Czervik should buy Judge Souter's Grave and turn it into a Public Toilet.

Frank "Cemeteries and Golf Courses, worst waste of Real Estate"

[JoeFromtheBronx]

Our former diarist cites two opinions OTD that stand out.

https://www.captcrisis.com/post/today-in-supreme-court-history-february-22-2

Whalen v. Roe, 429 U.S. 589 (decided February 22, 1977), upheld a regulation of prescription drugs. The opinion is notable for Justice Stevens's discussion of the right of privacy.

Joshua DeShaney v. Winnebago County, 489 U.S. 189 (decided February 22, 1989) is the famous "poor Joshua!" case.

The majority (joined by Stevens) argued this was a case of private violence. The due process clause, Rehnquist wrote, "is phrased as a limitation on the state's power to act, not as a guarantee of certain minimal levels of safety."

The primary dissent argues that once Joshua (who died in his mid-30s in 2015) was in the system, the government did have a responsibility. A wider argument would cite some traditional recognition of a government's responsibility to protect its citizens.

(The government's overall responsibility does not disappear merely if the majority is right as to the Due Process Clause. It can be a case of the limits of federal judicial power.)

https://archive.jsonline.com/news/obituaries/joshua12-b99614381z1-346259422.html/

Justice Blackmun added a short dissent, noting that the majority opinion was not compelled by the constitutional text. He compared it to antebellum judges "forced" not to protect the rights of black people. It is a lesson in the limits of bare textualism.

The case was included in the first collection of Supreme Court oral arguments (with the lawyer for the mother providing some comment) excerpts released by Peter Irons, back before the days of Oyez.com. Now we can listen to the whole thing online.