August
in Supreme Court History
August 1
American Mfrs. Mut. Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., 87 S.Ct. 1 (decided August 1, 1966): Harlan stays state court judgment, affirmed by New York’s highest court, due to argument that contract at issue violated antitrust laws, even though no showing of prejudice from having to pay the judgment and irrelevant that petitioner had not sought cert even though “substantial federal question” (in fact cert was later denied, 385 U.S. 931, 1966, and stay automatically terminated) (at issue was whether agreement to sponsor network news program involved “tying” prohibited by Sherman Act)
Holtzman v. Schlesinger, 414 U.S. 1304 (decided August 1, 1973): Marshall denies stay, which has the effect of allowing continued military operations in Cambodia; suit had been brought by Congresswoman Elizabeth Holtzman on basis of Congressional prohibition of such operations; Marshall’s opinion instructively reviews standards for granting a stay and how they might apply to this “sui generis” situation; he decides that the question should be decided by the full Court.
Note: three days later another application was made, to Douglas, who stayed Cambodia operations; later that day Marshall un-did the stay again, with all the other Justices agreeing with him except Douglas; the Second Circuit heard the full appeal and dismissed suit on August 8 on grounds that issue was political and therefore non-justiciable; cert denied in April 1974
August 2
Levy v. Parker, 396 U.S. 1204 (decided August 2, 1969): Douglas grants bail to Levy, an army doctor, convicted of Military Code provision (“disorder and neglect to the prejudice of the discipline of the armed forces”) which the Court had just observed, without deciding, might be unconstitutionally vague (O’Callahan v. Parker) (Douglas notes that Brennan had already denied bail -- so why did Douglas have jurisdiction?); Levy had publicly urged black soldiers to refuse to fight in Vietnam; suit dragged on into 1974, with the Court finally holding that the provision was not vague and superseded Levy’s First Amendment rights, 417 U.S. 733.
Barnes v. E-Systems, Inc. Group Hospital Medical & Surgical Ins. Plan, 501 U.S. 1301 (decided August 2, 1991): Scalia grants stay of Circuit Court’s striking down Texas statute as being preempted by ERISA; Scalia notes that requirement that ERISA-related suits be brought in federal courts might be in conflict with Eleventh Amendment; I don’t know what happened to this suit, but related suit resulted in denial of cert, 502 U.S. 981
Pacific Union Conference of Seventh-Day Adventists v. Marshall, 434 U.S. 1305 (decided August 2, 1977): Rehnquist denies stay of discovery order based on lack of jurisdiction (it’s not an appealable order); suit was by lay church employees alleging sex discrimination in pay in violation of Fair Labor Standards Act and church objected on First Amendment grounds to producing payroll records (case was settled before trial in October 1977)
August 3
Breswick & Co. v. United States, 75 S.Ct. 912 (decided August 3, 1969): the Interstate Commerce Commission, which had approved a merged railroad’s application to be considered a common carrier, runs into objections of prior shareholders (who will suffer a loss) and into a turf war with the Securities and Exchange Commission; Harlan grants a stay by fashioning a bond which will protect shareholders; the decision is notable because Harlan says he is relying on the opinion of the Clerk of the Court as to whether a single Justice can issue a stay in these circumstances
August 4
Truong Dinh Hung v. United States, 439 U.S. 1326 (decided August 4, 1978): Brennan, reversing Circuit Court, allows bail pending appeal of espionage conviction (passing along government secrets, theft of government property, acting as unregistered foreign agent) (this was in connection with Carter’s negotiations with the Socialist Republic of Vietnam on normalization of relations, return of prisoners, etc.); defendant, Vietnamese citizen, did not have permanent residence in U.S. and was in contact with Vietnamese ambassador in Paris, but Brennan notes “opportunity” to flee does not equal “inclination” to flee; defendant had resided here for 13 years, was close to his sister, a permanent resident who owned a house here, and “numerous affidavits” attested to his character and “reliability as a bail risk”. (Convictions were affirmed on full appeal in 1981, and cert denied. Truong was paroled in 1986, married an American college professor, and moved to the Netherlands, working as an economist for the EU.)
August 5
Davis v. Adams, 400 U.S. 1203 (decided August 5, 1969): Black upholds stay of Florida statute requiring incumbents of state office to resign that office before running for federal office; Black notes that there is not enough time before election for full Court to rule but believes that it would hold that Florida cannot add qualifications to candidates for federal office (the Court never ruled on the question, but the “resign to run” statute is still in force, with an exception for federal office, see https://www.votepinellas.com/Candidates-Committees/Candidates/-Resign-to-Run)
Scaggs v. Larsen, 396 U.S. 1206 (decided August 5, 1969): Douglas holds that habeas corpus can be invoked by serviceman who claims that his term of duty was unfairly extended (he was penalized for not reporting for training but he was for some reason not permitted to attend); orders him released; 9th Circuit later affirmed conviction (without opinion) and cert denied, with Douglas dissenting
August 6
In re Equitable Office Bldg. Corp., 72 S.Ct. 1086 (decided August 6, 1946): Bankruptcy trustee’s plan of reorganization had been accepted by the Bankruptcy Court. Application to Justice Reed to stay consummation of the plan by two previously unobjecting stockholders who had found a refinancer with better terms. Reed holds that the lower court’s refusal to modify the plan was not discretionary and, citing Bankruptcy Code provisions as to appealability, grants stay. (Business was refinanced in 1947, though it later sold the building which, built in 1915, still stands, at 120 Broadway, downtown Manhattan. Full of law firms. I’ve been there many times. Big, old, echo-y bathrooms. Some big, old, echo-y lawyers too.)
August 7
Ex parte Clarke, 128 U.S. 395 (decided August 7, 1888): Harlan denies habeas to a steamship operator who had been convicted of selling alcohol in violation of a recently-enacted Pennsylvania statute; rejects argument that the statute is unconstitutional; as an aside he also believes that Congress wouldn’t have the power to override it (maybe this is why a Constitutional amendment ended up being necessary?)
August 8
Public Service Board of State of Vermont v. United States, 87 S.Ct. 3 (decided August 8, 1966): Harlan denies stay of ICC order granting motion by Boston & Maine R.R. to discontinue on economic grounds passenger service from Springfield (Mass.) to White River Junction (Vt.); believes the District Court acted prematurely in initially granting stay because administrative remedies not exhausted, and no irreparable injury in letting order go into effect pending full Court review (B & M went bankrupt in 1970, was revived under new ownership in 1982 and became strictly freight)
Richmond v. Arizona, 434 U.S. 1323 (decided August 8, 1977): Rehnquist denies stay of execution sought pending rehearing of denial of cert; though cert was denied on same day as it was granted in Bell v. Ohio, the cases are different in that Richmond (unlike Bell, who was age 16) did not claim age as a mitigating factor. (In Bell the Court vacated the death penalty; Richmond’s case was remanded on a separate issue, and the Westlaw history runs to 26 cases, ending in 1994 with the Arizona Supreme Court reducing the sentence to life in prison, which he had largely already served. Both Bell and Richmond were named “Willie Lee” by their parents.)
Miroyan v. United States, 439 U.S. 1338 (decided August 8, 1978): Rehnquist denies habeas because no Fourth Amendment violation where government agents tracked defendants’ whereabouts via a beeper attached to rented aircraft utilized to import marijuana
Commodity Futures Trading Comm’n v. British American Commodity Options Corp., 434 U.S. 1316 (decided August 8, 1977): Marshall refuses to vacate stay of new regulation requiring commodity options dealers to segregate client money until their options are exercised or expire (we all know Marshall likes desegregation); “exceptional circumstances” for vacating a Circuit Court stay do not exist
Ward v. United States, 76 S.Ct. 1063 (decided August 8, 1956): In conference, Frankfurter alienated his fellow Justices by delivering hour-long lectures to them as if he were still a law professor. If you want to get a flavor of that, read this windy opinion on the history of bail, in which he implicitly lectures the lower court judges as well. Imagine being Black or Douglas and being subjected to this for 23 years. Anyway here he affirms the District Court’s denial of bail in a securities action where confidential reports indicated defendants were likely to flee.
August 9
United States v. FMC Corp., 84 S.Ct. 4 (decided August 9, 1963): Goldberg says he has no jurisdiction to stay a merger which allegedly violated the Clayton Act. Here, the U.S. brought suit in the District Court which denied its motion for a stay. The U.S. appealed to the Circuit Court, which held that it had no jurisdiction. At issue was the “Expediting Act”, 15 U.S.C. §29, under which final judgments in antitrust cases brought by the U.S. can only be appealed directly to the Supreme Court. This had been construed to mean that there can be no appeal (to any court) of nonfinal orders in such suits. Goldberg notes that there is a split in the circuits (the Third Circuit disagreeing with the others) but he goes along with the majority view. (Of course, as Circuit Justice he didn’t have the power to resolve the split; in fact it has never been resolved.) Also at issue was the “all writs” statute, 28 U.S.C. §1651(a), which codifies the common law view that an appellate court has the power to order injunctions (and any other relief) in aid of its appellate jurisdiction. Goldberg holds that the Expediting Act, being specific to this situation, was controlling.
August 10
Bowen v. Kendrick, 483 U.S. 1304 (decided August 10, 1987): Rehnquist notes that the Court always puts down for full appeal a case where a district judge has declared an Act of Congress to be unconstitutional. So he refuses to lift the judge’s stay of enforcement of the D.C.’s Adolescent Family Life Act, which provided for funding of sexual counseling programs run by religious institutions. However on full appeal, he wrote the opinion holding that the Act (heh) did not violate the Establishment Clause, 487 U.S. 589, 1988.
Heart of Atlanta Motel, Inc. v. United States, 85 S.Ct. 1 (decided August 10, 1964): Black refuses to stay district court orders enjoining restaurants from refusing to serve blacks (not people named Black; people who actually were black). Black (the man this time, not the race) states that a stay would in effect hold the Civil Rights Act of 1964 to be unconstitutional, something which only the full Court can do. (As we know, the Court upheld the district court and “whites only” public accommodations became illegal, 379 U.S. 241, 1964.)
Heckler v. Turner, 468 U.S. 1305 (decided August 10, 1984): Rehnquist stays enforcement of a disputed welfare rule (whether mandatory tax withholdings are a work expense or deducted from income), on which there was a split in the circuits, because Congress had just passed a law resolving the ambiguity. Unsurprisingly, the full Court ultimately decided in accordance with the new law (it’s a work expense -- ?? not helpful for the “working poor”!!), 470 U.S. 184, 1985.
August 11
Fowler v. Adams, 400 U.S. 1205 (decided August 11, 1970): Black allows Florida candidate for U.S. House to be on ballot even though he refused to pay the $2,125 statutory fee on the grounds that a state cannot set qualifications for federal office; not enough time for the Court to weigh in before the election, and if the fee is upheld Florida can get the $ from him later (I don’t think this issue was ever resolved)
Brennan v. U.S. Postal Service, 439 U.S. 1345 (decided August 11, 1978): Marshall refuses to stay conviction based on violation of Private Express Statutes; does not believe that the Court would agree with applicants (who operated a private letter delivery service) that the Postal Service was an illegal monopoly
August 12
Chrysafis v. Marks, 141 S.Ct. 2482 (decided August 12, 2021): Court stays New York’s Covid eviction moratorium statute; holds that landlords must be given chance to challenge tenants’ self-certification of hardship (issue became moot three weeks later when statute was revised to allow challenge)
August 13
Oden v. Brittain, 396 U.S. 1210 (decided August 13, 1969): Black denies motion to stay election of newly constituted local government in Anniston, Alabama; election is only three weeks away, and the change from five members elected at large to three did not have to be pre-cleared by the U.S. Attorney General under (the now illusory) §5 of the Voting Rights Act (Anniston is only a few miles from where Black grew up)
White v. Florida, 458 U.S. 1301 (decided August 13, 1982): Powell denies motion for stay of execution because no execution date set, nor is it imminent, and motion doesn’t specify reasons why certiorari will be requested
Pacific Telephone & Telegraph Co. v. Public Utilities Commission of California, 443 U.S. 1301 (decided August 13, 1979): Rehnquist refuses to continue stay of PUC order requiring phone company to refund customers and lower rates; phone company was actually arguing a tax issue for which the Court had previously denied cert
August 14
American Trucking Ass’ns v. Gray, 483 U.S. 1306 (decided August 14, 1987): Blackmun upholds injunction creating escrow for extra taxes paid by truckers who were challenging a new highway equalization tax on Dormant Commerce Clause grounds; Arkansas insisted on collecting taxes anyway, so escrow would keep the extra funds out of the state’s pocket (I remember those stickers saying, “This truck pays $20,000 a year in highway taxes” . . . I wonder if anyone wrote under that “and causes $50,000 a year in wear and tear”) (the truckers ultimately won, sub nom. American Trucking Ass’ns v. Smith, 496 U.S. 167, 1990)
McDaniel v. Sanchez, 448 U.S. 1318 (decided August 14, 1980): Powell stays order requiring county officials to proceed with “preclearance” procedure (the now-illusory §5 of the Voting Rights Act) for new apportionment plan; says Court must decide whether the plan, already approved by the District Court, is “legislative” (requiring preclearance) or “judicial” (not) (the Court ultimately held that the District Court should not have ruled on the plan; it should have been submitted directly to the Attorney General, 452 U.S. 130, 1981)
Stickel v. United States, 76 S.Ct. 1067 (decided August 14, 1956): Harlan denies continuance of bail pending cert approval because cert petition argues a point which appeared only in dicta in the lower court’s decision (trial judge erroneously applied preponderance instead of reasonable doubt standard in denying motion to acquit, but conviction affirmed on grounds that denial was proper even under reasonable doubt standard)
August 15
Bas v. Tingy, 4 U.S. 37 (decided August 15, 1800): During the Quasi-War with France (well depicted in the miniseries “John Adams”, with Paul Giamatti) a warship’s captain “and others” brought suit for salvage (such a suit was called a “libel” in those days) after they recovered four ships which had been lost to French privateers three weeks previous. This is one of those early “seriatim” decisions in which the each judge takes his turn displaying 18th-century prolixity. They hold that France was an enemy (duh) and the ships were lost for more than 96 hours, so that the salvage statute applied, giving them the full value of the ships. (Making the captain and his crew privateers as well?)
August 16
Russo v. United States, 404 U.S. 1209 (decided August 16, 1971): Douglas dissolves a Ninth Circuit stay of contempt conviction; applicant refused to answer grand jury questions and cites the circuit split on whether under the Omnibus Crime Bill of 1968 one can refuse if subpoena to testify was based on information gathered by illegal wiretapping; Douglas would normally jump at this, but no actual evidence of wiretapping
Bateman v. Arizona, 429 U.S. 1302 (decided August 16, 1976): Rehnquist denies bail to defendant convicted of marital sodomy who on cert will argue that consensual sodomy falls within right to privacy (but jury found that there was no consent!) (unsurprisingly, cert denied, 429 U.S. 864)
Board of School Comm’rs of Mobile Co. v. Davis, 84 S.Ct. 10 (decided August 16, 1963): Black refuses to stay desegregation order because it was made in accordance with Brown v. Board of Education and clear evidence that such an order was necessary (another example of former Ku Klux Klansman Black getting tough on his home state)
August 17
Arrow Transportation Co. v. Southern Ry. Co., 83 S.Ct. 1 (decided August 17, 1962): Black continues restraining order as to railway rates which plaintiff barge operator argues are so low (below cost) as to destroy barge industry in violation of Interstate Commerce Commission Act; notes federal question and likelihood of granting cert (however the Court ultimately dismissed the case as premature, the new rates having been suspended by the ICC pending administrative review, 372 U.S. 658, 1963)
Edwards v. Hope Medical Group for Women, 512 U.S. 1301 (decided August 17, 1994): Scalia denies stay of order preventing enforcement of Louisiana statute prohibiting public funds from being used to pay for abortions except to save life of mother; Hyde Amendment did not apply to this type of funding, states accepting Medicaid were required to provide such coverage, and cert had been denied in similar cases
Sellers v. United States, 89 S.Ct. 36 (decided August 17, 1968): Black denies request to suspend bail for civil rights activist convicted of rioting; though defendant had gone on unauthorized trip to Japan, made bellicose statements and was involved in another incident, he had always shown up for court dates and was not a flight risk (all the other defendants were white and were acquitted; the only casualties were protesters shot dead by police; defendant was pardoned by South Carolina Governor Campbell, a Republican, in 1993 and became president of a historically black college)
August 18
Hortonville Joint School Dist. No. 1 v. Hortonville Education Ass’n, 423 U.S. 1301 (decided August 18, 1975): Rehnquist refuses to stay Wisconsin Supreme Court order holding that teachers fired for going on illegal strike were denied due process; believes that cert would not be granted (in fact it was, and the Court ruled against the teachers, holding that review of terminations by the local school board was adequate due process, 426 U.S. 482, 1976)
August 19
Corpus Christi School District v. Cisneros, 404 U.S. 1211 (decided August 19, 1971): Black reinstates stay dissolved by Fifth Circuit of desegregation order granted by different trial court judge than the one who issued the order saying he would grant no stays; “it is apparent that this case is in an undesirable state of confusion and presents questions not heretofore passed on by the full Court, but which should be” (the Fifth Circuit later modified the order and cert was denied, 413 U.S. 922, 1973) (Black himself was in an undesirable state of confusion; at age 85 his mind had been failing and he resigned a few weeks later; I recommend this comprehensive historical review available online, Garrow, Mental Decrepitude on the United States Supreme Court, 67 U. Chi. Law Rev. 995 (2000); see the discussion of Black at pp. 1050 - 51)
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Rose v. Raffensberger, 143 S.Ct. 58 (decided August 19, 2022): Black voters won in suit claiming at-large voting for Georgia Public Service Commission violated Voting Rights Act and obtained permanent injunction against at-large voting. The Eleventh Circuit granted stay pending appeal. Here Thomas vacates the stay because the Circuit Court applied the wrong analysis (changing voting method would not be possible before November 2022 elections) instead of traditional analysis (likelihood of success on the merits). Thomas refers back to the Eleventh Circuit for reconsideration. (Georgia did not seek stay again, but postponed elections to 2023 until appellate course has run; Circuit Court heard argument on full appeal in December 2022, but stayed decision pending the Court’s decision in a Congressional apportionment case, Allen v. Milligan, 143 S.Ct. 1487, which was decided on June 8, 2023 under an analysis that favors the black voters here; no decision on appeal yet.)
August 20
Metropolitan Co. Board of Education v. Kelley, 453 U.S. 1306 (decided August 20, 1981): Stevens refuses to vacate stay of desegregation order; court that granted stay had greater familiarity with the case, and it would cause confusion if order (affecting 30 schools) went into effect and was later modified by the Sixth Circuit
Rosado v. Wyman, 396 U.S. 1213 (decided August 20, 1969): in suit by welfare recipients challenging new statute which would remove the “floor” of benefit amounts, Harlan refers application to stay enforcement to full Court; the Court eventually ruled in favor of welfare recipients, 397 U.S. 397, 1970
August 21
Matter of Disbarment of Gottfried, 518 U.S. 1043 (decided August 21, 1996): the Court disbars Lawrence R. Gottfried, who had been convicted of removal and destruction of government records under 18 U.S.C. §2071. Working for the VA, he evaluated appeals of denials of benefits. He made his job easier by extracting and throwing out documents and then referring the files back because they were incomplete. Eventually this attracted suspicion and then investigation. “From February 9, 1994, to May 10, 1994, the Inspector General copied thirty-eight veterans’ appeals files before the cases were assigned to Gottfried. In thirty-two of the cases, Gottfried removed and destroyed medical records, service records and other documents, and, in each case, he recommended that the Board remand without deciding the merits of the appeal. Some of the missing documents were found among trash on the curb outside Gottfried’s home and in his garage.” (58 F.3d 648 (D.C. Cir. 1995).) (When I was a new lawyer, in the days before e-mail, with a more subversive sense of humor, I asked some older attorneys: “What if every time something came to you, you threw it out without looking at it? How long could you get away with that?” The general answer was: about six months. I never tested this theory -- though I later had a boss who seemed determined to explore the limits.) As for Gottfried, he was on the job for 23 years before the roof fell in.
August 22
California v. American Stores Co., 492 U.S. 1301 (decided August 22, 1989): O’Connor continues injunction preventing merger of supermarket chains which might violate Clayton Antitrust Act; notes circuit split as to whether “injunction” under statute includes divestiture as a remedy (the Court found that it did, 495 U.S. 271, 1990)
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Matter of Lovett, 143 S.Ct. 69 (decided August 22, 2022): Jonathan Lovett of Somers, N.Y. (not far from where I am) suspended (and later disbarred); he did not oppose the notice of disbarment, nor did he oppose the disbarment proceedings in state court or even cooperate with the investigation (194 A.D.3d 39); however he is still listed on Yelp in case you’re thinking of hiring him (he had a well-documented career as a civil rights attorney)
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August 23
Lopez v. United States, 404 U.S. 1213 (decided August 23, 1971): Douglas orders draft resister released on his own recognizance; defendant claimed he had not been allowed to assert conscientious objector status after induction date but was now allowed to under Ehlert v. United States, 402 U.S. 99; Ninth Circuit then remanded for reconsideration on issue of whether his belief as to not being able to assert status was in good faith, 451 F.2d 1311.
Jimenez v. U.S. District Ct., S.D. Fla., 84 S.Ct. 14 (decided August 23, 1963): Goldberg denies stay of extradition sought by ex-dictator of Venezuela who had argued that 18 U.S.C. §3188 required him to be freed if more than two months had passed since he was “committed for rendition”; Goldberg “assumes” Venezuela will honor its promise to guard Jimenez’s personal safety (in fact it did; he was in jail for five years before trial and sentenced to time served, exiled to Spain, later returned to Venezuela but was disqualified from running for that country’s senate)
August 24
Kemp v. Smith, 463 U.S. 1321 (decided August 24, 1983): Powell denies stay of execution; notes that case has been reviewed 16 times by federal and state courts; doubts that Eleventh Circuit will agree with defendant on new issues but notes that they heard arguments the day before (it ruled against defendant, 715 F.2d 1459; after cert and another stay was denied, defendant was executed on Dec. 15, 1983, the first execution in Georgia since death penalty was reinstated in 1976)
August 25
Guey Heung Lee v. Johnson, 404 U.S. 1215 (decided August 25, 1971): Douglas denies stay of San Francisco desegregation order as to Chinese-ancestry children; holds that Brown v. Board of Education did not apply just to black children, and believes plan was “thoughtful” though not for him to approve it at this stage (stay was sought by Chinese parents who wanted to remain segregated)
Gray v. Kelly, 564 U.S. 1301 (decided August 25, 2011): Roberts denies condemned man’s motion to stay not the judgment of death, but the District Court habeas petition scheduling order; Circuit Justice has no power to “exercise supervisory authority” over District Court (defendant’s case went up and down the courts and after a final stay was denied he was executed on January 18, 2017; defendant and his nephew had gone on a 7-person killing spree in 2006, including nephew’s girlfriend who started as an accomplice and ended up as a victim)
August 26
Beltran v. Smith, 458 U.S. 1303 (decided August 26, 1982): imprisoned gangster, cooperating with prosecutors and in the Witness Protection Program, claims that he will be killed if transferred to another prison; Rehnquist denies stay of transfer order, no showing that program officials will fail to protect him (he served his time and afterward got back into gang activity, in 2009 was killed in a shootout with police)
August 27
In re Disbarment of N. Deday LaRene, 518 U.S. 1046 (1996): criminal defense attorney disbarred after he got in with his gangster clients and was indicted for embezzlement and tax evasion (73 F.3d 64), though that didn’t slow him down: see his firm’s web site, http://www.lareneandkriger.com, which says he’s been a member of the Supreme Court bar since 1977, even though in fact he’s never been reinstated
August 28
Willhauck v. Flanagan, 448 U.S. 1323 (decided August 28, 1980): Brennan denies stay of prosecutions by two D.A.’s arising from high speed car chase through adjacent counties; defendant had argued violation of Double Jeopardy clause and Brennan suggests that there is a double jeopardy exception for Younger abstentions, but jeopardy would not “attach” until jury was sworn in (I always thought that phrase was pretty meaningless; to say “jeopardy attaches when the jury is sworn in” means very little — defendant can be retried if there’s a hung jury or a mistrial) (defendant eventually got one prosecution dismissed on double jeopardy grounds, but look how long it took, 953 F.2d 689 (1st Cir. 1991) -- and it wasn’t even a death penalty case)
Dayton Board of Education v. Brinkman, 439 U.S. 1357 (decided August 28, 1978): Stewart denies stay in desegregation case because to grant it would disrupt current plan
Penry v. Texas, 515 U.S. 1304 (decided August 28, 1995): Rehnquist puts his foot down and denies 59-day extension of time to file cert petition; extensions in earlier cases were “when I was a new Circuit Justice” and complexity of case cannot be a reason for extension because counsel’s own Circuit Court brief ran 375 pages with 132 points of error and he must now have “considerable familiarity with the record”
August 29
Keyes v. Denver School District No. 1, 396 U.S. 1215 (decided August 29, 1969): Brennan vacates Circuit Court’s stay of desegregation plan; Circuit Court’s rationale was to allow time to build public support for plan, but that is not a good enough reason (Denver went through years of litigation with various plans, finally ending in 1991)
August 30
Wise v. Lipscomb, 434 U.S. 1329 (decided August 30, 1977): Powell stays Court of Appeals judgment rejecting reapportionment plan for electing Dallas City Council; plans submitted by legislatures (as opposed to plans ordered by a federal court) are entitled to some leeway and some at-large voting may be permissible; says good chance that cert would be granted (it was, and the Court agreed with Powell, 437 U.S. 535, 1978)
Dandridge v. Jefferson Parish School Board, 404 U.S. 1219 (decided August 30, 1971): Marshall, as you might expect, denies stay of desegregation plan; admits that changing from a dual to a unitary school system is difficult, but notes the “devastating, often irreparable injury to children who experience segregation and isolation” and cites the long list of Court desegregation decisions and notes that this Louisiana school district has been “mired in litigation for seven years”
August 31
Harris v. United States, 404 U.S. 1232 (decided August 31, 1971): Douglas, reversing both the District Court and the Court of Appeals, grants bail to defendant convicted of drug trafficking; notes reversal on merits possible because scanty evidence that defendant knew his truck contained narcotics, and not flight risk because he worked steadily as mechanic, had family in the area, and had never missed a court date
Bandy v. United States, 81 S.Ct. 25 (decided August 31, 1960): again Douglas grants bail, this time after Whittaker denied it, noting that prosecution does not oppose (must have been one of Whittaker’s many “bad” days)
Winston-Salem/Forsyth Co. Board of Education v. Scott, 404 U.S. 1221 (decided August 31, 1971): Burger, noting that the stay of a desegregation order should have been presented earlier, sits on the application for five days and then says it’s too late for it now because the school year started yesterday