December
in Supreme Court History
December 1
Moore v. Illinois, 55 U.S. 13 (decided December 1, 1852): upholding Illinois statute criminalizing hiding an out-of-state slave (not preempted by Const. art. IV, §2, which speaks only of delivery to owner upon demand)
McAfee v. Crofford, 54 U.S. 447 (decided December 1, 1851): recovery in trespass (invading property and carrying off slaves) includes consequential damages such as property lost due to not having slaves to watch over things (logs allowed to float away on river, invading cattle destroying corn crop) and also merits punitive damages
Clay v. Field, 138 U.S. 464 (decided December 1, 1891): complicated case involving the valuation of a plantation before, during, and after the Civil War, counting in the value that slaves (pre-manumission) added to the property but not the value of the slaves themselves
December 2
United States v. Stapf, 375 U.S. 118 (decided December 2, 1963): estate not entitled to marital tax deduction where will required widow’s share to be transferred to children
United States v. Powell, 423 U.S. 87 (decided December 2, 1975): 18 U.S.C. §1715, criminalizing mailing of concealed-carry-capable weapons to general public (for example, defendant’s 22-inch sawed-off shotgun), was not unconstitutionally vague (so far as I know, this statute survives Heller and McDonald)
United States v. Jose, 519 U.S. 54 (decided December 2, 1996): order enforcing IRS summons but requiring IRS to give five days’ notice to taxpayer before forwarding produced documents to its criminal division was “final order” and therefore appealable
December 3
International Shoe v. Washington, 326 U.S. 310 (decided December 3, 1945): this case is (as my law professor put it) the “fountainhead” of personal jurisdiction law, finally ending the “presence in the state” games begun in 1878 by Pennoyer v. Neff (which Civ Pro profs waste a lot of time on): jurisdiction over defendant consistent with Due Process if had enough “minimum contacts” in the forum state to “not offend traditional notions of fair play and substantial justice” (at issue was payment of unemployment insurance by out-of-state shoe seller) (Black’s dissent notes nothing in the Constitution that supports this formulation) (but nothing prohibits it either) (largely in effect overruled by Daimler AG v. Bauman, 2014)
Hamilton v. Regents of University of California, 293 U.S. 245 (decided December 3, 1934): state university students with religious objection to war not exempt from required courses in military science; courses did not obligate them to military service (as an anti-war person myself I think we should all learn as much as we can about the “science” of war -- I’ve read Sun Tzu, and not only does he make us understand the military mindset, much of what he says applies to other adversarial situations)
Griffin v. United States, 502 U.S. 46 (decided December 3, 1991): guilty verdict as to one objective of conspiracy (impeding IRS investigation into taxes) will stand even if no verdict as to another objective (impeding DEA investigation into forfeitable assets) (petitioner was not charged as to second objective)
December 4
New Jersey v. City of New York, 290 U.S. 237 (decided December 4, 1933): imposes penalties against NYC for not complying with earlier order prohibiting dumping garbage into ocean next to New Jersey
Arkansas Game and Fish Comm’n v. United States, 568 U.S. 23 (decided December 4, 2012): flooding by U.S. Army Corps of Engineers (water released from dam) which destroyed state’s downstream timber crop is a “taking” even if only temporary
Logan v. United States, 552 U.S. 23 (decided December 4, 2007): exemption to sentence aggravation under Armed Career Criminal Act for those who have “had civil rights restored” did not apply to defendant who had otherwise applicable prior convictions but who had never had civil rights taken away
December 5
Lopez v. Gonzalez, 549 U.S. 47 (decided December 5, 2006): felony under state law which is only a misdemeanor under federal law is not “a felony punishable under the Controlled Substances Act” (18 U.S.C. §924(c)(2)) (here, abetting possession of cocaine) and therefore deportation is discretionary
Things Remembered, Inc. v. Petrarca, 516 U.S. 124 (decided December 5, 1995): order remanding after removal is not appealable (once it’s out of federal court, it’s gone) (wrinkle here was that remand was to bankruptcy court, not state court, but bankruptcy court had no choice but to remand further to state court)
Pavelic & LeFlore v. Marvel Entertainment, 493 U.S. 120 (decided December 5, 1989): Rule 11 sanctions for a frivolous pleading are to be awarded against the attorney who signed it, not his law firm (Scalia cites text of Rule; in dissent Marshall emphasizes trial judge’s right to control his courtroom, and that trial judge penalized both attorney and firm) (if you want to see an extreme example of Rule 11 “satellite litigation” during those mean years, check out Cooter & Gell v. Hartmax, 1990) (in 1996 or so my adversary once threatened me with a Rule 11 motion for proposing to ask the judge for permission to move for summary judgment)
December 6
Palko v. Connecticut, 302 U.S. 319 (decided December 6, 1937): Fifth Amendment’s prohibition of double jeopardy did not apply to the states (upholding Connecticut statute allowing prosecution to appeal a lesser-charge conviction so as to get retrial on more serious charge) (overruled by Benton v. Maryland, 1969)
Salman v. United States, 580 U.S. 39 (decided December 6, 2016): in prosecution under §10-b of Securities Exchange Act of 1934, jury could infer that source of information (here, as to potential mergers/acquisitions) received a personal benefit from the tip (this is necessary for conviction under §10-b) because he was brother-in-law of defendant (who made about $1.5 million trading on the information) even though source did not make any $ himself
Reich v. Collins, 513 U.S. 106 (decided December 6, 1994): Georgia Supreme Court can’t retroactively construe its statute allowing refund of illegally collected taxes so as to avoid refunding a tax on federal retirement benefits which had been declared unconstitutional (by Davis v. Michigan Dept. of Treasury, 1989)
December 7
Campbell v. Holt, 115 U.S. 620 (decided December 7, 1885): new Texas constitution (which went into effect after Texas was readmitted into the Union) validly abolished statute of limitations as to suit for value of plantation (which included value added by pre-manumission slaves)
Michigan v. Fisher, 558 U.S. 45 (decided December 7, 2009): “emergency aid” exception to warrant requirement applied when man was seen screaming and throwing things in his house even though he pointed a gun at officer and demanded a warrant before entry and police didn’t know if anyone else was in the house (in dissent Stevens said trial judge’s impression of witnesses should be given deference and Court should not “micromanage” in a close case)
Lockhart v. United States, 546 U.S. 142 (decided December 7, 2005): Social Security benefits can be withheld to pay student loan debt (this holding will become important as this generation of college students gets to retirement age still in debt)
December 8
Chew Heong v. United States, 112 U.S. 536 (decided December 8, 1884): Chinese Exclusion Act (requiring certificate for entry) did not apply to those who were in already in the country, left then returned
Shapiro v. McManus, 577 U.S. 39 (decided December 8, 2015): Constitutional challenges to Congressional reapportionments must be referred to three-judge panel (appeal from which is one of the only remaining direct, non-discretionary appeal routes to the Supreme Court, and I think the only one directly from the trial level) (trial court had treated referral as discretionary)
Mohawk Industries v. Carpenter, 558 U.S. 100 (decided December 8, 2009): order denying claim of attorney-client privilege is not immediately appealable (I suppose the only thing to do if disclosure would put your client in some kind of outside jeopardy is to flout the order and get cited for contempt, but that order’s not appealable either)
December 9
MacMath v. United States, 248 U.S. 151 (decided December 9, 1918): clerk employed as “acting U.S. weigher” at collection port not entitled to $2,500 statutory salary assigned to weighers (collection ports were notoriously a gold mine of booty, but I suppose not for lowly weighers, “acting” or otherwise)
Warger v. Shauers, 574 U.S. 40 (decided December 9, 2014): enforcing Fed. R. Evid. 606(b): juror cannot testify, and court cannot receive affidavit, as to statements during deliberations (here, as to bias) (exceptions: jury considered extraneous prejudicial information; was subjected to outside influence; or foreman made a mistake on the verdict form)
Virginia v. Maryland, 540 U.S. 56 (decided December 9, 2003): What to do about the Potomac River? Charles I, as a favor to his friend Lord Baltimore, had set the Maryland border on the Virginia side of the river, instead of in the middle or along the thalweg; this decision overruled Charles and said Maryland couldn’t interfere with Virginia’s use of the river, in particular drawing water from it for drinking. (The Mount Vernon Conference of 1785, a precursor to the Constitutional Convention, had already made the same decision, but it no longer had legal force.)
December 10
Whole Women’s Health v. Jackson, 595 U.S. — (decided December 10, 2021): suit against abortion “bounty hunter” statute (Texas S. 8) can proceed against state health officials having collateral authority over abortion services but not against judges and clerks who put S. 8 cases on dockets (Sotomayor’s argument in dissent, that such a statute can in effect prevent the exercise of any explicitly recognized Constitutional right, survives Dobbs)
McConnell v. Federal Election Comm’n, 540 U.S. 93 (decided December 10, 2003): rejected First Amendment attack on McCain-Feingold campaign finance disclosure law (partly overruled by Citizens United v. FEC, 2010)
Tanzin v. Tanvir, 592 U.S. — (decided December 10, 2020): FBI agents violating Religious Freedom Restoration Act can be liable in individual capacities (plaintiffs were Muslims who were placed on “no-fly” list for refusing to inform on their communities; they were then taken off list, making the injunctive claim moot; Court here held only that claim for damages could go forward, without deciding merits)
December 11
Texas v. Pennsylvania, 592 U.S. — (decided December 11, 2020): Texas has no standing to contest how other states conduct their elections (the Constitutional objection argued appears to be that Biden actually lost)
Carey v. Musladin, 549 U.S. 70 (decided December 11, 2006): fact that judge allowed murder victim’s family to sit in front row at trial wearing buttons with victim’s photo did not entitle defendant to habeas relief (because allowing this was not contrary to “clearly established” federal law, 28 U.S.C. §2254(d)(1))
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (decided December 11, 1922): legislature violated Contracts Clause rights of mining company by prohibiting mining that would cause subsidence damage to private property (in effect overruled by Keystone Bituminous Coal Ass’n v. DeBenedictis, 1987)
December 12
Bush v. Gore, 531 U.S. 98 (decided December 12, 2000): stopped the recount ordered by the Florida Supreme Court (though the Court had already stayed it), citing Equal Protection violation; hard to summarize this “don’t ever cite us for this!” decision further so I won’t try (Westlaw lists 104 cases giving this case “negative treatment”, courts on all levels except the Supreme Court itself of course). Note: Maybe due to the rushed briefing this wasn’t brought out, but this decision seemed to me to overrule the Taylor v. Beckham, 1900, line of cases, which shut federal court doors to Lyndon Johnson’s opponent in the 1948 Senate race and to Richard Nixon in 1960 (Nixon, a well-read lawyer, didn’t even try because he knew it was pointless)
Mitchell v. New York, L.E. & W.R. Co., 146 U.S. 513 (decided December 12, 1892): trial court correctly directed verdict for defendant railroad where teenager who had secretly climbed on top of coal car with his friends fell to his death due to “sudden jerk” of train
Shaw v. United States, 580 U.S. 63 (decided December 12, 2016): 18 U.S.C. §1344 (bank fraud) applies to defrauding a depositor as well as a bank
December 13
United States v. Wheeler, 254 U.S. 281 (decided December 13, 1920): Constitutional right to travel (art. IV, §2) does not apply to state action (quashing indictment of Arizona sheriff who rounded up 1300 striking miners and sent them in cattle cars without supplies to New Mexico and threatened them with death if they returned to Arizona) (in effect overruled by United States v. Guest, 1966)
White v. United States, 154 U.S. 661 (decided December 13, 1880): owner of vessel had no recovery against government for wartime damage caused by refusal of ship’s master to obey military commander
Devenpeck v. Alford, 543 U.S. 146 (decided December 13, 2004): arrest valid even though based on probable cause of crime (impersonating an officer) that is not related to the crime that ended up being charged (secretly audiotaping arresting police officer’s questioning, which was in violation of state law)
December 14
Katzenback v. McClung, 379 U.S. 294 and Heart of Atlanta Motel v. United States, 379 U.S. 241 (both decided December 14, 1964): Congress had Commerce Clause power to prohibit racial discrimination in restaurants (Katzenbach) and public accommodations (Heart of Atlanta Motel) because interstate commerce involved
Texas v. New Mexico, 592 U.S. — (decided December 14, 2020): another original jurisdiction case involving water rights; here, the Court gives New Mexico credit for Texas water that evaporated while being stored in New Mexico at Texas’s request (mixing it with Tequila would have prevented that)
NYNEX Corp. v. Discon Inc., 525 U.S. 128 (decided December 14, 1998): buyer’s economically irrational decision to not buy from a certain seller (of services to remove outdated telephone equipment) is not per se antitrust violation under “group boycott” rule (e.g., refusal of group of buyers to buy from those who also sell to a certain other buyer)
December 15
Heien v. North Carolina, 574 U.S. 54 (decided December 15, 2014): police can stop you for something they think is illegal but actually isn’t (here, broken brake light, not an offense under state law; upon consensual search of car they found cocaine)
Altria Group v. Good, 555 U.S. 70 (decided December 15, 2008): Maine statute prohibiting false advertising as to cigarettes (here, one brand falsely alleged it had less “tar” and nicotine than another) not preempted by federal statute prohibiting restrictions on advertising of cigarettes which are properly labeled as to health dangers
General Electric Co. v. Joiner, 522 U.S. 136 (decided December 15, 1997): trial court’s rulings as to admitting expert testimony (here, as to whether exposure to PCBs “promoted” plaintiff’s cancer) are reviewed as to abuse of discretion (this is the traditional standard, now being applied in the context of the guidelines announced in Daubert v. Merrell Dow Pharmaceuticals, 1993)
December 16
Greene v. Georgia, 519 U.S. 145 (decided December 16, 1996): state Supreme Court on direct appeal does not have to defer to trial judge’s findings as to juror bias (trial judge had excused for cause jurors who had reservations about the death penalty); such deference (set forth in Wainwright v. Witt, 1985) applies only in habeas proceedings (where at issue is matter outside the record — questions which should have been asked, things that should have been done, evidence which should have been introduced, etc.)
Heimeshoff v. Hartford Life & Acc. Ins. Co., 571 U.S. 99 (decided December 16, 2013): suit on disability benefits plan is time-barred by plan’s own limitations period even though administrative remedies not yet exhausted (ERISA is silent on the issue)
Robertson v. Gerdan, 132 U.S. 454 (decided December 16, 1889): Ivory pieces to be attached to piano keys are subject to “ivory” tariff instead of “musical instrument” tariff. Note: This issue is now inconsequential due to the near-prohibition on ivory in an effort to protect elephant herds. I represented an instrument dealer in getting some vintage items exported. The regulatory scheme is perverse. First, ivory used in musical instruments is solely decorative (e.g., tips of violin bows), and the only instruments with it are vintage instruments for which no elephants have been shot in decades (nowadays plastic is used). The real culprits are dealers selling big items made from entire tusks, whereas ten thousand bow tips would be needed to result in the ruination of one tusk. Secondly, only certain types of ivory are prohibited. Not (for example) wart hog ivory or mammoth/mastodon ivory (!). The type of ivory is supposed to be determined by examining chevron patterns with a special microscope, but customs officials just seize anything they think looks like ivory. Orchestras have had international tours canceled because the bows of the string section were confiscated at the airport. (My client gave me a old bass bow, for free; it has an ivory screwpiece and is therefore unsellable. I am a basisst and it’s a very good bow, but it would be just as good with a plastic screwpiece.)
December 17
Illinois Central R.R. Co. v. McKendree, 203 U.S. 514 (decided December 17, 1906): Secretary of Agriculture can’t make a regulation (here, a “quarantine line” from California to Maryland to control cattle infection) that affects interstate commerce without specific Congressional authority; regulation also affected intrastate commerce and being indivisible was void in its entirety
NLRB v. Saviar Mfg. Co., 245 U.S. 359 (decided December 17, 1973): certification of union voided where before certification election the union promised that anyone who voted for certification would have their initiation dues waived
Arlan’s Dept. Store of Louisville v. Kentucky, 371 U.S. 218 (decided December 17, 1962): dismisses First Amendment Establishment Clause objections to state statute prohibiting employing persons on Sunday; in dissent Douglas makes the point (obvious to us nowadays) that Judaism and Islam don’t use Sunday as the sabbath
December 18
Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249 (decided December 18, 1972): simply because airplane crashed into navigable water does not create admiralty jurisdiction; claim has to be related to maritime activities (upon takeoff plane ran into flock of seagulls which clogged the engines and plane sank in Lake Erie, though crew survived; allegedly the air traffic controller should not have ok’d the takeoff) (if it was the seagulls’ next of kin bringing suit, would the result have been different?)
Korematsu v. United States, 323 U.S. 214 (decided December 18, 1944): upholding against Equal Protection attack military order clearing those of Japanese ancestry from a designated “military area” (here, City of San Leandro, California) (overruled? — by Trump v. Hawaii, 2018)
Illinios Central R.R. Co. v. Perry, 242 U.S. 292 (decided December 18, 1916): railroad employee injured (due to collision) during personal trip between two points within Kentucky can’t sue under Employers’ Liability Act because not involved in interstate commerce, even though train was carrying goods between states
December 19
Sorrells v. United States, 287 U.S. 435 (decided December 19, 1932): defendant accused of liquor sale (during Prohibition) can assert entrapment defense (agent who served in same division during World War I visited with some mutual friends and drew him into a long chat about their wartime experiences, casually asked for liquor, and after third request defendant left and returned twenty minutes later with a bottle and agent paid him $5 — aha!! you’re under arrest!)
Hunt v. Springfield Fire & Marine Ins. Co., 196 U.S. 47 (decided December 19, 1904): claim on insurance policy (for loss of household furniture) properly denied because furniture subject to “deed of trust” which is the same as a “chattel mortgage” and therefore excluded under policy language (this is an example of the “federal common law” the Court used to render before Erie R.R. v. Tompkins; state supreme courts were only too happy to go along as the Court decided issues of state law for them)
Reina v. United States, 364 U.S. 507 (decided December 19, 1960): affirming contempt order; witness had refused to testify after having been granted immunity under federal narcotics law statute but claimed Fifth Amendment privilege citing danger of state prosecution; Court holds that immunity also extends to state proceedings and does not encroach on state police powers in violation of Tenth Amendment (Court notes that statute, 18 U.S.C. §1406, had language similar to other federal immunity statutes, so I suppose this holding is broadly applicable)
December 20
United States v. Marion, 404 U.S. 307 (decided December 20, 1971): speedy trial requirement (Sixth Amendment) is not triggered until arrest (here, for business fraud, where prosecutors waited three years before arresting); the accused (or rather, future accused) is still protected by the statute of limitations
Craig v. Boren, 429 U.S. 190 (decided December 20, 1976): denial of Equal Protection when Oklahoma men held to higher drinking age (21) than women (18) (opinion notes how they are treated differently anyway, with drunk men being arrested while drunk women are “chivalrously escorted home”, and how women are more affected by alcohol due to lower body weight such that statute as stands “is actually perverse”)
Hirota v. General of the Army MacArthur, 338 U.S. 197 (decided December 20, 1948): tribunals set up by military government of Japan are not part of federal court system so can’t be appealed from (officers and “high officials” of former Japanese government were jailed after being found guilty of war crimes and sought habeas)
December 21
Oregon v. Mitchell, 400 U.S. 112 (decided December 21, 1970): original jurisdiction case; Congress can set voting age requirements for federal elections but not state or local elections (quickly abrogated by Twenty-Sixth Amendment which set national voting age of 18)
Baltimore City Dept. of Social Services v. Bouknight, 488 U.S. 1301 (decided December 21, 1988): Granting stay of Court of Appeals order holding that mother properly invoked self-incrimination privilege when refusing to answer questions from DSS about whereabouts of son (in other words, the trial court’s holding of contempt was back in effect) (this was not a sympathetic contemnor; there was “hard evidence” of mother’s previous physical abuse of child and she had stopped attending parenting classes and appearing for DSS appointments) (the Court eventually affirmed the finding of contempt, 493 U.S. 549, 1990). She was finally released in 1995 after seven years in jail. The judge ordered no contact with her son (fortunately they had found him) unless cleared by a psychiatrist. This is from the story of her release, from the Baltimore Sun: “Ms. Bouknight’s attorneys insisted their client had been victimized for trying to cooperate with police to find Maurice. Every time she started to help again, other lawyers in their case would withdraw their support for her release on the grounds that her cooperation meant that keeping her jailed was having some helpful effect.” ??
Williams v. North Carolina, 317 U.S. 287 (decided December 21, 1942): North Carolina must give “full faith and credit” (art. IV, §1) to Nevada divorces; can’t bring a bigamy prosecution (at which a jury evaluated proper service of Nevada divorce proceedings and “bona fides” of couple’s residence in Nevada)
December 22
Memphis & L. R.R. Co. v. Berry, 112 U.S. 609 (decided December 22, 1884): tax break given to railroad company formed by act of legislature does not survive such that company which purchased it can benefit from it
Blumenthal v. United States, 332 U.S. 539 (decided December 22, 1947): conspiracy prosecution doesn’t have to identify all conspirators (conspiracy here was to sell whiskey at prices above ceiling set under Emergency Price Control Act of 1942); “secrecy and concealment are essential features of successful conspiracy”
New York Belting & Packing Co. v. New Jersey Car-Spring & Rubber Co., 137 U.S. 445 (decided December 22, 1890): design of corrugated mat was not “novel” enough to warrant a patent (the opinion has a drawing of the mat which does not do justice to its properties as described — corrugated sections juxtaposed such that as one passes over it one sees “moiré patterns” and “mosaic” effects) (“If the person changes his position continuously the effects are kaleidoscopic”) (the kaleidoscope was patented, as well as various improvements to it — why not this mat?)
December 23
International News Service v. Associated Press, 248 U.S. 215 (decided December 23, 1918): wire services can’t steal stories from one another (the Court, creating pre-Erie “federal common law”, held that this was common law misappropriation of property; such a tort in this context has been preempted by the Copyright Act of 1976, see 650 F.3d 876)
Singer Mfg. Co. v. Rahn, 132 U.S. 518 (decided December 23, 1889): sewing machine salesman was agent of employer (even though working on commission) and therefore employer was liable when salesman ran his horse-drawn cart into plaintiff
Capital Square Review and Advisory Board v. Pinette, 510 U.S. 1307 (decided December 23, 1993): denying stay of order forcing state of Ohio to allow Ku Klux Klan to put up a “Latin cross” in front of statehouse because harm already done and it would be removed the next day anyway (upon full appeal the Court held that under First Amendment private parties cannot be prevented from putting up unattended cross on publicly owned square designated by law as forum for public discussion of issues, 515 U.S. 753, 1995) (btw the cross, anchored in temporary fashion in a pail of cement, sure looks like it’s ready to be burnt on the lawn of some black family — look at the photo and judge for yourself — https://www.mtsu.edu/first-amendment/article/734/capitol-square-review-and-advisory-board-v-pinette)
December 24
Missouri Kansas & Texas Ry. Co. of Texas v. Ferris, 179 U.S. 602 (decided December 24, 1900): no federal question presented by Texas statute providing that refusal to answer at deposition is not an admission as to a corporate party (this was a civil case, wrongful death)
Gatewood v. North Carolina, 203 U.S. 531 (decided December 24, 1906): nominal stock exchange where no stocks were actually bought or sold (instead, members were awarded difference between sale price and market price) was actually a “bucket shop”, i.e., illegal betting (isn’t this perfectly legal now — it’s called the stock index futures market?)
Noyd v. Bond, 393 U.S. 1048 (decided December 24, 1968): Douglas springs Capt. Noyd from jail in time for Christmas Eve; Noyd was appealing his court-martial for protesting the Vietnam War by refusing to instruct an officer how to fly a military airplane (the Court ended up dismissing Noyd’s suit, holding that he had not exhausted his military appeals, 395 U.S. 683, 1969)
December 25
Liverpool & London & Globe Ins. Co. v. Gunther, 116 U.S. 113 (decided December 25, 1885) (was this case really “filed” on December 25, as Westlaw has it?): No, this case did not concern the raise given by Scrooge to Bob Cratchit being in violation of some wage and price control (actually that was on December 26), but is a boring matter dealing with expenses of a suit and trustees of a railroad. Sorry, it was the only December 25 case I could find!
December 26
Hobby Lobby Stores, Inc. v. Sebelius, 568 U.S. 1401 (decided December 26, 2012): Sotomayor denies stay of enforcement of Affordable Care Act because claimed Free Exercise Clause/Religious Freedom Restoration Act violation was not “indisputably clear” (as we know, the Court later held that there was indeed a Free Exercise/RFRA violation, sub nom. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682)
December 27
Socialist Workers Party v. Attorney General of the United States, 419 U.S. 1314 (decided December 27, 1974): Marshall denies stay of Circuit Court order; as a result FBI agents are allowed to attend/monitor SWP’s national youth convention; Marshall notes that convention was open to the public, agents would not be disruptive, and if agents were excluded “the potential injury to the FBI’s continuing investigative efforts would be apparent” (unclear what they were investigating) (I wonder how that changed the tone of the convention, with everyone knowing FBI agents were present?)
P.S. Some of the “radicals” at my undergrad college flattered themselves by thinking the FBI was in our midst. If that was really true, it would have been a waste of taxpayer dollars. We were no threat to anything, let alone national security. We were just a harmless, disorganized bunch of idiots. Half of us couldn’t even spell.
My friend (we called him “Rasta John”) was absolutely convinced. Supposedly one could tell a wiretap by a “click” on the phone line. I would be casually talking to him on some mundane matter, and then I would tap my pen against the receiver. “Did you hear that??!” “No. Anyway . . . “ And then I tapped my pen again. He went stark raving nuts. With some people, it’s almost as if you’re being dared.
December 28
Synanon Foundation, Inc. v. California, 444 U.S. 1307 (decided December 28, 1979): Rehnquist denies stay of order allowing California Attorney General to intervene in affairs of charitable organization suspected of corruption; Synanon claimed it was a church but First Amendment provides no special protection (I was glad to see Synanon get their comeuppance; their “attack therapy” was much praised when I was first working in that field and it seemed to me monstrous)
December 29
Parisi v. Davidson, 396 U.S. 1233 (decided December 29, 1969): Douglas denies stay of Vietnam deployment of man who appealed denial of conscientious objector status; man would not be assigned combat duty or training, and his duties (he was a “psychological counselor”) would be no different there than stateside
December 30
Louisiana v. Hill, 141 S.Ct. 1232 (decided December 30, 2020): Hill was convicted of statutory rape and “SEX OFFENDER” was put on his driver’s license. He was convicted of scratching the words off. He won on his argument that this was “compelled speech” in violation of the First Amendment, both in the trial court and the Louisiana Supreme Court (341 So.3d 539). Here Alito denies Louisiana’s motion for a stay; its petition for cert was then denied, 142 S.Ct. 311 (2021).
Klutznick v. Carey, 449 U.S. 1068 (decided December 30, 1980): The District Court found that the Census had undercounted New York, particularly in poor and minority areas, and precluded certification of the results. Here the Court grants the Solicitor’s motion to stay that order. The Second Circuit later reversed, holding that New York’s statistical adjustment proposal would be unfair to other states, 653 F.2d 732 (the Court then denied cert).
December 31
National League of Cities v. Brennan, 419 U.S. 1321 (decided December 31, 1974): the last two days of 1974 were busy. On December 30 a three-judge panel heard arguments made by several cities and states that Fair Labor Standards Act amendments setting wage/hour standards for state and municipal employees (set to take effect on January 1) violated the Tenth Amendment. On December 31 the panel rejected those arguments. Later that day, “after the close of business”, Burger was presented with a motion by plaintiffs for an interim stay pending cert. (Also around that hour Douglas, vacationing in the Bahamas with his newest and youngest wife, suffered a debilitating stroke.) Burger granted the stay; after months of partial awareness Douglas resigned on November 12, 1975; and the Court ended up siding with the cities and states, 429 U.S. 833, 1976. (My Con Law professor called that holding the “temporary resurrection of the Tenth Amendment”, temporary because it was overruled nine years later by Garcia v. San Antonio.)