July
in Supreme Court History
July 1
Cleburne v. Cleburne Living Center, 473 U.S. 432 (decided July 1, 1985): Equal Protection violated by refusing to grant permit to build group home for intellectually disabled (rational basis review; this holding was more or less codified by 1988 Fair Housing Act amendment that added people with mental disabilities to list of protected persons)
Brnovich v. Democratic National Committee, 594 U.S. --- (decided July 1, 2021): Voting Rights Act not violated by new laws barring ballot collection and out-of-precinct voting; neither had racially discriminatory purpose; Alito’s opinion upholds district court finding that there was no disparate impact; no evidence of any “fraud” or “intimidation” these restrictions were meant to combat and Alito assumes such a showing is unnecessary
Planned Parenthood v. Danforth, 428 U.S. 52 (decided July 1, 1976): struck down Missouri statute requiring either parental or spousal consent for abortion
Bellotti v. Baird, 428 U.S. 132 (decided July 1, 1976): certifies to Massachusetts’s highest court the question of whether Massachusetts statute requiring parental consent for abortion conflicted with state law holding that some minors are capable of giving informed consent (the state court held that it did not, and the statute was struck down in Bellotti v. Baird, 1979, not on Equal Protection grounds but because it burdened the right to an abortion)
Americans for Prosperity Foundation v. Bonta, 594 U.S. --- (decided July 1, 2021): striking down on Free Association grounds California law requiring charities to send to Attorney General IRS forms listing donor information; purpose was to prevent abuse of not-for-profit laws but in fact did not help in those efforts
Allen v. Illinois, 478 U.S. 364 (decided July 1, 1986): proceedings under which person is declared “sexually dangerous” (resulting in warnings to community etc.) are not “criminal" so there is no Fifth Amendment privilege; 5 - 4 decision (sounds wrong to me! -- one can certainly take the Fifth in a civil lawsuit)
CBS v. FCC, 453 U.S. 367 (decided July 1, 1981): any candidate for federal office who makes it onto the ballot must be given chance to buy broadcast time (suit was brought by Carter-Mondale campaign which had been denied access)
Mississippi University for Women v. Hogan, 458 U.S. 718 (decided July 1, 1982): state school (here, a nursing school) can’t have single-sex admission policy
United States v. Winstar Corp., 518 U.S. 839 (decided July 1, 1996): statute dealing with savings and loan crisis changed valuation terms for failed banks to the detriment of successor banks who had agreed to take over and therefore federal government breached its contract with them
School District of Grand Rapids v. Ball, 473 U.S. 373 (decided July 1, 1985): Establishment Clause violated by program putting public school teachers in religious schools to teach secular topics (overruled by Agostini v. Felton, 1997)
July 2
Gregg v. Georgia, 428 U.S. 153 (decided July 2, 1976): death penalty is ok if rendered by jury in separate sentencing phase with established aggravating and mitigating factors and appellate review provided as to disproportionality (in a sense reversing Furman v. Georgia, 1972)
Roberts v. Louisiana, 428 U.S. 325 (decided July 2, 1976): death penalty is unconstitutional if it’s mandatory for certain crimes (this decision cited Gregg)
Proffitt v. Florida, 428 U.S. 242 (decided July 2, 1976): Florida death penalty is now o.k. because it has been changed along the lines of the Georgia law in Gregg
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Fullilove v. Klutznick, 448 U.S. 448 (decided July 2, 1980): upholds against Equal Protection attack statute requiring 10% of funds for public works to go to minority contractors (fractured opinions, which allowed a later Court to more or less overrule this case and require strict scrutiny for such set-asides, Adarand Constructors v. Pena, 1995)
New York v. Ferber, 458 U.S. 747 (decided July 2, 1982): First Amendment not violated by bans on children engaged in sexual activity (here, boys masturbating) even if not “obscene” (i.e., even if it has educational value and does not involve putting penis into some orifice)
Hobby v. United States, 468 U.S. 339 (decided July 2, 1984): even if there was discrimination in the selection of grand jury foremen (for 7 years, none had been black) that does not violate due process so as to dismiss indictment
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Randall v. Loftsgaarden, 478 U.S. 647 (decided July 2, 1986): even when purchased as a tax shelter, the rescission benefits awarded to an investor after fraud is found do not act as setoff to the tax benefits received from the shelter
Berkemer v. McCarty, 468 U.S. 420 (decided July 2, 1984): Miranda warning must be given when arrested for misdemeanors (drunk driving -- which the Court called a “minor traffic offense”??) and well as felonies
Columbus Board of Education v. Penick, 443 U.S. 449 (decided July 2, 1979): Columbus, O. school district in violation of Brown desegregation order because its practice of assigning only black teachers to black schools and pattern of new school placements had effect of perpetuating segregation
Richmond Newspapers v. Virginia, 448 U.S. 555 (decided July 2, 1980): closure of courthouse for criminal trial (defense moved for it, no one objected) was in violation of Sixth Amendment (public trial) and First Amendment (freedom of press); extensive opinion going through the historical rationale for Sixth Amendment right; distinguished Gannett v. DePasquale, 1979, which dealt only with pretrial arguments, not trials
July 3
FCC v. Pacifica Foundation, 438 U.S. 726 (decided July 3, 1978): George Carlin’s “seven dirty words” broadcast on WBAI in New York at 2 p.m.; Court upholds FCC’s reprimand despite First Amendment concerns; possibly would have been different result if broadcast at night (I listened to ’BAI in those years and they would talk about the incident regularly, though not mentioning the actual words) (“she was working for the friends of ’BAI” -- anyone remember that song?)
Webster v. Reproductive Health Services, 492 U.S. 490 (decided July 3, 1989): Missouri declared that a fetus was a person and forbade public funds being used for abortions or gov’t employed personnel from performing them; Court says this was not inconsistent with Roe
Hudson v. Palmer, 468 U.S. 517 (decided July 3, 1984): don’t need a warrant to search a prisoner’s belongings (no post-deprivation expectation of privacy) (what did they find? a ripped pillow -- aha! destroying government property!)
United States v. Karo, 468 U.S. 705 (decided July 3, 1984): evidence seized without warrant (can of ether used to make cocaine) did not invalidate arrest justified by lawfully obtained evidence (smell of ether and sighting of can outside)
Bell v. Ohio, 438 U.S. 637 (decided July 3, 1978): striking down Ohio’s death penalty statute because it did not allow for mitigating factors in sentencing (such as character, past record)
Regan v. Time, Inc., 468 U.S. 641 (decided July 3, 1984): statute prohibiting photographing of money struck down because the exception for “newsworthy purposes” was too vague (purpose of statute was obviously to prevent counterfeiting; the February cover of Sports Illustrated -- no, not the swimsuit issue! -- had a color photo of $100 bills pouring into a basketball hoop) (in college I knew someone who would put a dollar bill onto the library copy machine and then put the trimmed-down copies into the change machine next to it -- the ploy worked but they eventually caught him)
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Block v. Rutherford, 468 U.S. 576 (decided July 3, 1984): no Fourth/Fourteenth Amendment problem with county jail denying visits and conducting unannounced shakedowns (these were men who had not yet been convicted of crime)
County of Allegheny v. ACLU, 492 U.S. 573 (decided July 3, 1989): Establishment Clause violated by creche on courthouse staircase but not by menorah outside county building next to Christmas tree and “a sign saluting liberty” (I wonder if this was the traditional “Liberty” statue with bare breasts -- ?)
Wasman v. United States, 468 U.S. 559 (decided July 3, 1984): after retrial and conviction after successful appeal the court can consider conviction (on another offense) that occurred after original conviction in determining sentencing
July 4
In re Lewis, 418 U.S. 1301 (decided July 4, 1974): Douglas releases Will Lewis, San Francisco radio station manager, who had been jailed for contempt and spent 19 days in solitary confinement; Lewis had given copies of recordings (from the Weather Underground relative to a shootout with the police by the Symbionese Liberation Army) to the FBI but refused to deliver the originals; Douglas cites First Amendment concerns, pending decision on appeal (which Lewis lost, 501 F.2d 418, and decided to finally hand them over); Lewis had a long career and retired in 2010 (this is the only case I could find for July 4; I owe it to William O. Douglas, normally not a hard worker, who decided to ruin his Independence Day -- and that of his clerks -- for a cause close to his heart)
July 5
United States v. Leon, 468 U.S. 897 (decided July 5, 1984): evidence (here, drugs) can be admitted into evidence despite bad warrant if warrant was facially valid and police relied on it in good faith; warrant found not based on probable cause but purpose of exclusionary rule (to deter police misconduct) didn’t apply
Marsh v. Chambers, 463 U.S. 783 (decided July 5, 1983): use of government funds to pay legislature’s chaplain did not violate Establishment Clause (all he did was say a prayer to open the session)
Illinois v. Andreas, 463 U.S. 765 (decided July 5, 1983): defendant arrested when he emerged to pick up internationally shipped box containing marijuana addressed to him but delivered by policemen in disguise; no warrant needed to reopen box to get the evidence because no expectation of privacy (box had been lawfully opened at airport by customs inspector who had then alerted police)
Smith v. Robinson, 468 U.S. 992 (decided July 5, 1984): fees not awarded in successful suit to have mentally disabled child educated at state expense because claim was under Education of Handicapped Act of 1973 (which had no fee award provision) as opposed to 42 U.S.C. §1983 (which does) (holding superseded by Handicapped Children’s Protection Act of 1986)
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Massachusetts v. Sheppard, 468 U.S. 981 (decided July 5, 1984): “good faith” exception to exclusionary rule (because of lateness of hour, used “controlled substance” warrant form for murder arrest, but probable cause made out and officer had no reason to think warrant, vetted by District Attorney and judge, was invalid)
Selective Service System v. Minnesota PIRG, 468 U.S. 841 (decided July 5, 1984): upholding Constitutionality of Selective Service Act which denies federal financial aid for college if you don’t register for the draft within 30 days of turning 18 (my generation knew that law very well)
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Irving Independent School District v. Tatro, 468 U.S. 883 (decided July 5, 1984): Education of the Handicapped Act of 1973 requires school to provide catheter for child with spina bifida (allows bladder to empty)
Segura v. United States, 468 U.S. 796 (decided July 5, 1984): After illegal entry and arrest of occupants (for a drug sale), police could secure the premises for 19 hours until warrant obtained to properly search and seize contents; warrant based on information obtained before entry.
Jones v. Barnes, 463 U.S. 745 (decided July 5, 1983): assigned counsel on oral argument of appeal of conviction who argued from his brief had no duty to argue points made by defendant himself in his pro se brief (why did the court accept the pro se brief in the first place?)
INS v. Lopez-Mendoza, 468 U.S. 1032 (decided July 5, 1984): past statements made by deportees in civil deportation hearings admissible despite lack of Miranda warnings; INS’s own rules create adequate Fourth Amendment protections and fact that virtually all persons notified of deportation proceedings voluntarily submit to deportation means that few will challenge their arrest
July 6
South Dakota v. Opperman, 428 U.S. 364 (decided July 6, 1976): no warrant needed to search car impounded because illegally parked; cars are not “houses” (Fourth Amendment) and diminished expectation of privacy; marijuana found during permissible “inventory”
Chiafalo v. Washington, 591 U.S. --- (decided July 6, 2020): a state can fine a “faithless elector” who does not vote according to the instructions laid down by the state legislature (State of Washington went for Hillary Clinton, but three of its electors voted for Colin Powell, hoping to sway Trump electors to do likewise and deny Trump a majority in the Electoral College; a total of seven electors were “faithless” that year)
Barr v. American Ass’n of Political Consultants, 591 U.S. --- (decided July 6, 2020): debt collection exception to “do not call” law (ha!! what the hell happened to that??) did not violate First Amendment as favoring debt collection speech over still-prohibited political (robocall) speech (damn all robocalls to Hell)
Arizona Governing Comm’n for Tax Deferred Annuity Plans v. Norris, 463 U.S. 1073 (decided July 6, 1983): deferred compensation pension plan to state employees did not violate Title VII even though it helped men more (they greatly outnumbered female employees in the early years due to admitted discrimination) but would have to be even handed going forward
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Michigan v. Long, 463 U.S. 1032 (decided July 6, 1983): “protective search” of car for weapons during investigative stop was reasonable under Fourth Amendment without warrant (driver, “under the influence”, wandering outside car when police arrived, saw “large hunting knife” on floor, something sticking out from under armrest, entered vehicle and found marijuana under it)
Barclay v. Florida, 463 U.S. 939 (decided July 6, 1983): trial judge finding of past record as “aggravating circumstance” justifying execution, improper under Florida law, not reviewable by Court because capital punishment is not unconstitutional under federal law
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Cantor v. Detroit Edison Co., 428 U.S. 579 (decided July 6, 1976): antitrust immunity of State (Parker v. Brown, 1943) extends to private action directed by State (druggist selling light bulbs could not sue utility which provided free light bulbs as part of its approved rate structure)
Barefoot v. Estelle, 463 U.S. 880 (decided July 6, 1983): OK to admit psychiatric testimony as to possible future dangerousness when evaluating habeas corpus (the APA opposed such testimony and I can understand why; I used to work in a mental health department and we would hate having to fill out that part of the form -- as the psych on our unit would say, “They think we have a crystal ball!” -- because we’d get blamed if something went wrong -- and the guy who ran the group home some of our clients lived in was the father of one of those killed by a Black Panther Leonard Bernstein had held a party for -- look it up) (superseded by Antiterrorism and Effective Death Penalty Act of 1996)
California v. Ramos, 463 U.S. 993 (decided July 6, 1983): jury determining possible life sentence without possibility of parole can be given the “Briggs instruction” (mention that the governor can commute sentence to possibility of parole) even though it more likely results in without-parole sentence
Buffalo Forge Co. v. United Steelworkers, 428 U.S. 397 (decided July 6, 1976): federal court must defer to arbitrator on whether to enjoin a “sympathy strike” (steelworkers supporting clerical workers in same plant) (arbitrator was deciding whether the no-strike clause in steelworker contract had been violated) (in those days when one drove along Route 5 west of Buffalo one could see the fires of mile upon mile of steel plants; within 20 years they were all gone)
July 7
Commodity Futures Trading Comm’n (CFTC) v. Schor, 478 U.S. 833 (decided July 7, 1986): no separation of powers problem with statute allowing CFTC hearing reparations proceedings against brokers to also have (non-exclusive) jurisdiction over state law counterclaims even though not an Article III court with no trial by jury
Bowsher v. Synar, 478 U.S. 714 (decided July 7, 1986): separation of powers violated by Congressional agency official whose deficit reductions the President was bound to follow (this decision basically invalidated the Gramm-Rudman-Hollings Act, an attempt to control the Reagan-era deficit explosion) (a cartoon at the time showed an overweight Congressman walking on a log to cross a river and then the log went “poof!”)
University of Tennessee v. Elliott, 478 U.S. 788 (decided July 7, 1986): District Court evaluating racial wrongful termination claim not bound by ALJ determination of no racial intent (not a state court judgment so 28 U.S.C. §1738, requiring federal court to give “full faith and credit”, does not apply)
Bethel School District v. Fraser, 478 U.S. 675 (decided July 7, 1986): First Amendment did not protect smartass student’s telling of dirty jokes at school assembly (or “Ass - sembly” -- cue Beavis & Butthead laugh huh-huh huh-huh)
Merrell Dow Pharm. v. Thompson, 478 U.S. 804 (decided July 7, 1986): violation of FDA guidelines did not create federal law issue (esp. since Congress did not provide for a private right of action) and so no federal court jurisdiction over case alleging birth defects due to misbranded drug
Arcara v. Cloud Books, Inc., 478 U.S. 697 (decided July 7, 1986): fact that premises used for soliciting prostitution also sold (adult) books did not create First Amendment issue when premises (signed as a bookstore) was closed by local police
Sam Fox Publishing Co. v. United States, 364 U.S. 801 (decided July 7, 1960): can’t intervene as of right (FRCP 24) to change a consent decree to which one is not bound (music publisher objected to so-ordered agreement between other publishers and ASCAP, an association of songwriters)
O’Brien v. Brown, 409 U.S. 1 (decided July 7, 1972): during 1972 Democratic Convention, staying Court of Appeals judgment that Credentials Committee should not have unseated delegates (suit had been brought in District Court just four days before!) (re: that convention, see Hunter S. Thompson’s fascinating account in “Fear and Loathing on the Campaign Trail” of Humphrey’s attempt to game the rules so as to deny the nomination to McGovern, and how this was prevented by McGovern’s forces deliberately losing a vote on a point of order) (I remember Walter Cronkite on TV declaring that McGovern’s nomination was now in danger, then the cut to McGovern headquarters and the correspondent saying, “I don’t mean to disagree with you Walter -- but why are all these kids cheering?”) (Humphrey’s clueless aides were also jubilant, but Humphrey soberly said, “No, they pulled that deliberately”)
July 8
Secretary of the Navy v. Avrech, 418 U.S. 676 (decided July 8, 1974): soldier busted down to private for publishing a “disloyal” statement; Court refuses to hear case because service personnel do not enjoy full First Amendment rights (citing Parker v. Levy, 1974)
Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. --- (decided July 8, 2020): “ministerial exception” to First Amendment (as to teachers of religion) precludes age discrimination and disability discrimination lawsuits (I don’t know of any Catholic doctrine that says old people or disabled people can’t teach religion -- in fact the Church has long been happy to be guided by decrepit and disabled Popes)
Little Sisters of the Poor SS. Peter & Paul Home v. Pennsylvania, 591 U.S. --- (decided July 8, 2020): upholding federal exemptions allowing religious institutions to opt out of Affordable Care Act’s contraceptive insurance coverage requirement even though not promulgated in accordance with Administrative Procedure Act
Pennsylvania v. Trump, 591 U.S. --- (decided July 8, 2020): companion case to Little Sisters v. Pennsylvania
Wardlow v. Texas, 591 U.S. --- (decided July 8, 2020): denying stay of execution and rejecting psychiatrists’ opinion that youth of defendant prevented his full knowledge of crime; Wardlow (who at age 18 had killed someone during a burglary) was executed by lethal injection 28 minutes after decision came down
Sutherland v. Illinois, 418 U.S. 907 (decided July 8, 1974): refusing to review judgment that flag with peace symbol displayed on private property was protected by First Amendment; issue already decided in favor of flag bearer via Spence v. Washington, two weeks before (see June 26)
Farrell v. Iowa, 418 U.S. 907 (decided July 8, 1974): denying certiorari in case involving flag desecration as part of political speech (citing Spence)
Cahn v. Long Island Vietnam Moratorium Committee, 418 U.S. 906 (decided July 8, 1974): affirming decision vacating conviction for placing the “Peace Symbol” upon the Flag (citing Spence)
July 9
McGirt v. Oklahoma, 591 U.S. --- (decided July 9, 2020): Oklahoma had no jurisdiction to try Native American because alleged crime occurred on what was still technically a reservation despite long history of broken promises and disruption of borders; case can only be tried in federal court under the Major Crimes Act (the decision is a good example of Gorsuch’s casual writing style)
Trump v. Vance, 591 U.S. --- (decided July 9, 2020): rejecting Trump’s attempt to block grand jury subpoena on his accountants; Article II and Supremacy Clause not violated by state criminal process on a sitting President
Trump v. Mazars USA, 591 U.S. --- (decided July 9, 2020): Trump contested Congressional subpoenas into his financial affairs for purpose of determining money laundering and extent of foreign influence; no executive privilege asserted, but Congress had never subpoenaed Presidential records before and Court remanded for consideration of separation of powers concerns (Thomas in dissent holds that Congress can never subpoena private papers from anyone, let alone the President, except as part of an impeachment process) (with Trump no longer President, D.C. Circuit ruled that the subpoenas had to be responded to in part, 39 F.4th 774, 2022)
July 10
Turner v. Quarterman, 554 U.S. 933 (decided July 10, 2008): Stay of execution denied, as it had been by the Fifth Circuit, but we learn from the Fifth Circuit dissent that defendant’s sole argument -- that he was entitled to federally appointed counsel in his clemency proceeding -- though foreclosed by Fifth Circuit precedent, had been decided differently by other Circuits and the Supreme Court had just granted certiorari to deal with the split. (In that case, Harbison v. Bell, the Court came down on Mr. Turner’s side, but the decision was rendered on April 1, 2009, some nine months after he was executed by lethal injection.)
July 11
Organized Village of Kake v. Egan, 80 S.Ct. 33 (decided July 11, 1959): Brennan grants restraining order preventing Alaska from enforcing statute criminalizing fish traps against Native American tribe because Secretary of Interior had granted exemption and its livelihood depended on them. (Question on full appeal was whether the Secretary’s authority superseded Alaska’s. The Alaska Supreme Court ended up ruling against the Native Americans, and the Court affirmed in 1962, 369 U.S. 60, in which Frankfurter, in one of his last majority opinions, derided traps as a “lazy man’s device”, though he extended Brennan’s stay to the end of that fishing season.)
Rockefeller v. Socialist Workers Party, 400 U.S. 1201 (decided July 11, 1970): Harlan grants stay of the District Court’s order striking down on Equal Protection grounds requirement that the 12,000 voters needed for petition for statewide ballot include at least 50 voters from each county because it overvalued votes in less populous counties (i.e., giving those counties disproportionate veto power over who gets onto the ballot) (the least populous county, Hamilton, had only 1/500th the population of the most, Kings/Brooklyn) (order was affirmed by the Court without opinion on October 12 of that year, 400 U.S. 806, though the District Court’s decision shows that the Socialist Party lost on other issues)
July 12
New York Times Co. v. Jascalevich, 439 U.S. 1304 (decided July 12, 1978): Marshall denies stay pending certiorari application as to New Jersey subpoena requiring reporter Myron Ferber to hand over documents in murder trial; stay inappropriate while trial was in progress and in camera review pending; Marshall pointed out if reporter refused to comply he could raise his arguments again in resulting contempt proceeding. The day before, White had denied a stay as to subpoena to testify as witness. The stay was vacated by the Court on October 6, 1978, for unknown reasons, perhaps mootness. No record as to whether cert petition was ever filed.
Note: This was the trial of Mario E. Jascalevich, the “Dr. X” in articles by Ferber which noted patients dying after simple operations and which attracted the attention of prosecutors. Ferber decided to disobey the subpoenas and spent 40 days in jail and the Times was fined $286,000. Jascalevich was acquitted and moved his practice to Argentina. In 1982 Governor Byrne pardoned Ferber and ordered part of the fines returned.
July 13
Julian v. United States, 463 U.S. 1308 (decided July 13, 1983): request for bail denied by Rehnquist because grant of certiorari appeared very unlikely (applicant had been caught with drugs while trying to board flight to Peru -- sure sounds like a flight risk to me)
Capital Cities Media v. Toole, 463 U.S. 1303) decided July 13, 1983): refusing to rule on stay of order (affirmed by the Pennsylvania Supreme Court) prohibiting press disclosure of jury photos and other jury information; denial was without prejudice to renew pending appeal of related orders; later the Court denied a stay by remanding to the Pennsylvania Supreme Court for a decision on reasons for upholding the prohibition; on remand the Pennsylvania court held it did not have jurisdiction for this application (now they tell us!)
Carter v. United States, 75 S.Ct. 911 (decided July 13, 1955): Frankfurter denies motion to extend time to file for certiorari; rejected “new counsel” and “busy with criminal matters” excuse (“sorry, I have to put the Supreme Court on the back burner because I have more important things to do!”)
July 14
Barr v. Lee, 140 S.Ct. 2590 (decided July 14, 2020): stay of execution (actually denial of preliminary injunction) denied to death row inmates because their claim that execution by pentobarbital sodium injection was “cruel and unusual” was unlikely to command four votes for certiorari (the per curiam opinion points out the surprising [at least to me] fact that the Court has never found a method of execution to be cruel and unusual); Ginsburg and Breyer dissent on the basis that the death penalty was unconstitutional, Sotomayor because this issue should not be disposed of so hastily on an application for a stay (the lead petitioner, Daniel Lewis Lee, was executed the next day, the first federal execution in 17 years)
July 15
Campbell v. Florida, 400 U.S. 801 (decided July 15, 1970): denies cert in murder case where defendant argued that it was error to exclude jurors who would impose death penalty only if recommendation for mercy was added (this was between Witherspoon v. Illinois, 1968, which struck a statute allowing peremptory excusals of jurors who had general objections to death penalty, and Wainwright v. Witt, 1985, can exclude automatically anti-death penalty jurors but not those who had reservations about it)
July 16
Travia v. Lomenzo, 86 S.Ct. 7 (decided July 16, 1965): In this order by Harlan refusing a stay of a District Court decision, we see 1) that a federal trial court order, even when up for appeal, is “final and binding” on a state’s highest court; 2) how pissed off he was by the Supreme Court’s earlier decision in this case, which he dissented from; 3) how he is bound by the Court’s earlier decision regarding a similar application (381 U.S. 431); and 4) how if the Court had explained its reasoning “in a sensitive and not heavy-handed manner” the state court would have felt free to defer to the District Court. Here, the question was whether state senate and assembly elections could be held in the midst of litigation as to whether a recent reapportionment violated Equal Protection. The District Court ordered it to go forward; the state court had ordered it stayed. The matter was settled the next year, in time for the 1966 elections, when the New York court approved reapportionment recommendations of a judicial commission (Orans v. Rockefeller, 1966).
July 17
Rubin v. United States, 524 U.S. 1301 (decided July 17, 1998): Rehnquist denies motion to stay subpoenas for testimony of Secret Service officers as to what they overheard Clinton say in regard to the matters Kenneth Starr was investigating; Rehnquist concedes that “confidentiality” and “the physical safety of the President” are implicated, and assumes for the purpose of the motion that cert would be granted, but then denies the application on the grounds that the Circuit Court’s decision requiring compliance would be affirmed (?). Cert was denied, 525 U.S. 990, with strong dissents from Breyer and Ginsburg noting the history of Secret Service agents in close proximity to the President (and within earshot) foiling assassination attempts.
Benten v. Kessler, 505 U.S. 1084 (decided July 17, 1992): rejecting pregnant woman’s request for return of the French abortion pill RU-486, which had been confiscated when she entered the country
Reproductive Services, Inc. v. Walker, 439 U.S. 1307 (decided July 17, 1978): In this abortion case involving medical malpractice and false advertising, where records as to five other patients had been subpoenaed, Brennan stays Texas court proceedings pending filing of a cert petition because the parties could not agree on keeping the patients’ names confidential. Brennan says that the issue presented -- whether patient names can be obtained without a protective order -- would merit granting cert, but cert was in fact denied on jurisdictional grounds, 439 U.S. 1133 (1979).
July 18
Hamblen v. Dugger, 492 U.S. 929 (decided July 18, 1989): Staying execution pending decision on certiorari, with the stay to dissolve if cert was denied. Cert was denied on 6/28/90, 497 U.S. 1031, with Brennan and Marshall as usual dissenting, “adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendmentes”. For some reason execution did not happen then; it happened the day after another application for a stay was denied on 9/21/90, 497 U.S. 1054, with only Marshall dissenting (Brennan had retired by then). According to the AP report of Hamblen’s electrocution, “During his last minutes, he smiled, winked and stuck his tongue out at witnesses in the death chamber. In his final statement, Hamblen made a play on President Bush’s campaign promise not to raise taxes. ‘You know that I had trouble with that four-letter L-word, so like George, read my lips,’ Hamblen said to Judith Dougherty, one of his state-funded attorneys. He then mouthed the words, ‘I love you.’” He had at one point asked his appeals to be dropped and said he was depressed that his execution had been postponed so long. His crime: in the process of robbing a lingerie store, shooting the owner in the back of the head when she pressed a silent alarm button.
July 19
Rostker v. Goldberg, 448 U.S. 1306 (decided July 19, 1980): Does the draft (applicable to males only) discriminate? The District Court said yes and enjoined enforcement. Here, Brennan grants a stay of that order (as to males born in 1960 and 1961), noting the significant questions involved and the likelihood of cert. As it turned out, cert was granted and the Court upheld the males-only draft, with Rehnquist’s opining that males and females were not “similarly situated” (453 U.S. 57 (1981)). (For years it was obvious that a later Court would hold differently, but what about the current Court?)
Akel v. State of New York, 81 S.Ct. 25 (decided July 19, 1960): Frankfurter denies motion to fix bail in a narcotics conviction, because New York’s highest court had denied it and had not certified that a federal issue was involved. (Note his snark toward New York’s most prestigious judge: “When a judge as solicitous as is Judge Stanley H. Fuld to safeguard the interests of defendants in criminal cases denies an application for bail pending a proposed petition for certiorari to this Court on a claim of a substantial federal right, one naturally attributes some solid ground for such denial.”)
Owen v. Kennedy, 84 S.Ct. 12 (decided July 19, 1963): Black refuses to stay order requiring Mississippi officials to hand over poll tax records in federal elections under Civil Rights Act of 1960, rejecting arguments as to self-incrimination and due process (prohibition on poll taxes became part of the Constitution the next year)
Aberdeen & Rockfish R. Co. v. Students Challenging Regulatory Agency Procedures (SCRAP), 409 U.S. 1207 (decided July 19, 1972): Burger refuses to lift stay of new railroad rates which allegedly would have the effect of reducing incentives to recycle in violation of the National Environmental Policy Act of 1969 (he notes, “Our society and its governmental instrumentalities, having been less than alert to the needs of our environment for generations, have now taken protective steps”); railroads won on full appeal, 412 U.S. 669 (1973)
July 20
Califano v. McRae, 434 U.S. 1301 (decided July 20, 1977): Marshall turns down request to stay the Court’s previous order allowing the Medicaid abortion ban to go into effect; movants were essentially asking a rehearing of two recent Court decisions allowing states to have their own bans on public funding for abortions, and Marshall dissented in those cases; Marshall points out that a request for rehearing must be directed at a judge who voted in the majority (so that means you can’t ever move for a rehearing if the judge for your Circuit happened to be a dissenter?)
Hedrick v. Kelly, 548 U.S. 928 (decided July 20, 2006): denying stay of execution (Stevens and Ginsburg would grant the stay); Fourth Circuit had rejected ineffective assistance of counsel claim, and on procedural grounds rejected Brady claim (failure of prosecutor to turn over exculpatory material) and Atkins claim (executing “mentally retarded” is “cruel and unusual”), and substantive claim that he was “mentally retarded”. Hedrick, after an evening of smoking crack and drinking, had kidnapped 23-year-old Lisa Crider, whom he knew to be a crack dealer’s girlfriend and was probably carrying crack, robbed her and raped her, and then shot her in the face to avoid retaliation from the boyfriend. Hedrick was executed the same day the stay was denied.
July 21
NCAA v. Board of Regents of University of Oklahoma, 463 U.S. 1311 (decided July 21, 1983): White (a former NCAA star himself) stays decision against NCAA because certiorari would probably be granted (lower courts had held that arrangement banning televising of teams not selected by networks was illegal price-fixing under antitrust laws); cert was granted but White got pushed back into his own end zone (i.e., the Court affirmed)
Delo v. Blair, 509 U.S. 823 (decided July 21, 1993): stay of execution denied by full Court because facts similar to recently-decided Herrera v. Collins decision (conviction upheld due to uncoerced written confession despite numerous post-trial witness affidavits); Blackmun, Stevens and Souter dissent, as they had in Herrera, basically on the argument that Herrera was wrongly decided
South Park Independent School District v. United States, 453 U.S. 1301 (decided July 21, 1981): Powell turned down stay of desegregation order because facts are similar to recent case where cert was denied, even though he personally would vote to grant cert and had voted to grant cert in the prior case
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Barber v. Ivey, 143 S.Ct. 2545 (decided July 21, 2023): denies stay of execution in Alabama by lethal injection; in dissent Sotomayor (with Kagan and Jackson) point out that same Alabama agency has spent hours searching for veins, causing pain, and sometimes not killing the prisoners, leaving them with (sometimes) “nerve pain equivalent to electrocution”, and wouldn’t allow discovery into why those executions failed (Barber was executed two hours later)
July 22
King v. Greene, 524 U.S. 965 (decided July 22, 1998): denying stay of execution and also certiorari; Stevens and Ginsburg would have granted stay (i.e., they didn’t want this guy ever to be executed); King had kicked, choked and stabbed a woman to death; the Fourth Circuit had rejected arguments that he wasn’t properly “Mirandized” (judges hate when lawyers use that term) and wasn’t provided with a lawyer when he asked
Socialist Workers Party v. Rockefeller, 400 U.S. 1201 (decided July 22, 1970): in this dispute over a party’s candidates getting onto the ballot, Harlan denies reconsideration of his July 11 order denying stay because served along with his carrot juice that morning was a letter from the Attorney General saying the candidates would be allowed on the ballot provided they comply with all the other (non-contested) requirements
Gregg v. Georgia, 429 U.S. 1301 (decided July 22, 1976): Powell, master of explaining the obvious, grants stay of numerous executions pending hearing of appeal because “if the executions in these cases were carried out before the Court hears the appeal, the harm to petitioners would be irreparable. (Well, yeah.) In addition, the cases would then be moot.” As it turned out, the convictions were upheld by the Court in Proffit v. Florida, decided October 4, 1976, and by the next day the mootness issue itself became moot.
July 23
In re Roche, 448 U.S. 1312 (decided July 23, 1980): Brennan on First Amendment grounds continues stay of subpoena in disciplinary proceeding against state judge requiring news reporter to identify which source on list of witnesses provided which information even though reporter during deposition had already given all the information in substance and identified all sources as being somewhere on the list; Brennan believed cert would be granted but there is no further record of this case
In re Discipline of Quinn, 567 U.S. 955 (decided July 23, 2012): order suspending Brian S. Quinn from practicing before the Court; Quinn later consented to be stricken from the rolls; Pennsylvania Supreme Court disciplinary decision against him recounts drug convictions and related malpractices; he became advocate for overcoming addiction (and does presentations on the topic for the same CLE outfit I do presentations for)
July 24
United States v. Nixon, 418 U.S. 683 (decided July 24, 1974): Court denies President Nixon’s motion to quash the Special Prosecutor’s subpoena; rules that he has to hand over “the tapes” which included the June 23, 1972 “smoking gun” tape which depicted what everyone in those days (including Nixon, a well-read lawyer) understood to be obstruction of justice: he had agreed with his Chief of Staff Haldeman’s suggestion that the CIA be told to lean on the FBI to stop the Watergate investigation. (As opposed to, say, taking the initiative in actually sacking the FBI director to stop an investigation and bragging about it to Lester Holt on national TV.) Nixon resigned two weeks later. The subpoena was issued in a criminal case against former Attorney General John Mitchell, Haldeman and five others, for conspiracy to obstruct justice, with Nixon as an unindicted co-conspirator. Unanimous opinion signed by Burger (though it was a collective effort), with Rehnquist, a former Mitchell aide, recusing himself. The Court noted that “the President’s need for complete candor and objectivity from advisers calls for great deference from the courts” but rejected Nixon’s claim of absolute, unspecified executive privilege. The opinion reads now like a time capsule of a judicial, political and Constitutional world which functioned because both parties were committed to it, as was the President, who decided to obey the Court’s order and hand over the tape which he knew would destroy him.
July 25
Miller v. Calilfornia, 418 U.S. 915 (decided July 25, 1974): Appeal from California state court obscenity conviction (actually the state appellate court’s affirmance) dismissed because no federal question, apparently because the proper standard under the Fifth and Fourteenth Amendments had already been decided by the Court in 413 U.S. 15 (1973), which had vacated the first affirmance and sent it back to the state appellate court, which again affirmed the conviction. This was essentially a redo of the 5 - 4 1973 decision, with Brennan, Stewart and Marshall again arguing that the state obscenity statute was unconstitutionally overbroad, and Douglas (with the ghost of Hugo Black chiming in) again arguing that any obscenity statute violates the First Amendment.
Wasmuth v. Allen, 85 S.Ct. 5 (decided July 25, 1964): Harlan refuses to stay enforcement of a New York statute requiring chiropractors to pass exams in various medical topics before licensure; chiropractors were bent out of joint (sorry) by this allegedly arbitrary exercise of legislative power (14 N.Y.2d 391), but Harlan did not believe a public health measure should be stayed except in “demanding circumstances” and did not think there was a federal issue anyway warranting granting certiorari. No further history; either certiorari was denied, or the chiropractors gave up, or the subluxations were “adjusted” with state authorities.
Field v. United States, 1951 WL 44182 (decided July 25, 1951): (why was this not reported either in United States Reports or West’s Supreme Court Reporter?) Three applicants, including the writer Dashiell Hammett, were trustees of a bail fund and subpoenaed when four men convicted of Communist affiliation jumped bail. The three refused to hand over records, were convicted of contempt, were themselves denied bail, and applied to Stanley Reed as Circuit Justice pending appeal. He affirms the denial of bail because their refusal was undeniably “contemptuous” and their conviction would be affirmed by the Court. Apparently no cert petition was filed. Hammett’s tuberculosis worsened in prison, then when free in 1953 he refused to cooperate with the House Un-American Activities Committee and was blacklisted, his health declined and he died in 1961.
July 26
DeBoer by Darrow v. DeBoer, 509 U.S. 1301 (decided July 26, 1993): Stevens denies (on grounds of lack of a federal issue) couple’s petition to stay Michigan Supreme Court’s order to hand over to biological parents the baby girl they had taken care of for two years; Michigan held that papers signed by biological mother giving child up for adoption were defective and did not have required 72-hour waiting period. (Years ago when I ran a crisis center I allowed it to serve as the site for handing over children in such situations, or for later visitations with a biological parent who had lost custody; there is no more heartbreaking scene.)
Trump v. Sierra Club, 140 S.Ct. 1 (decided July 26, 2019): staying the District Court’s injunction against building the border wall (on both environmental and humanitarian grounds) pending Ninth Circuit determination and then possible certiorari on the grounds that plaintiffs probably have no standing to bring suit in the first place; Ginsburg, Sotomayor and Kagan dissent; Breyer notes the harm if the wall is built (environmental damage) versus the Gov’t’s claim of harm if not built (construction contracts not finalized and loss of funds) and argues that a middle way would be to stay construction but let the contracts get finalized. (A year later the Court maintained the stay even though contracts had been finalized, so the wall got partly built, but when Biden came in he stopped the project and the parties agreed to discontinue.)
July 27
Mahan v. Howell, 404 U.S. 1201 (decided July 27, 1971): in one of his last acts, Hugo Black refuses to stay District Court order changing reapportionment done by Virginia legislature so that there was lesser disparity in population (7.2% vs. 16.4%); because of time pressures, and because the issues were complicated and the lower court judges were unanimous, Black did not believe that cert would be granted (in fact it was, after Black and Harlan retired -- and quickly died -- and were replaced by Powell and Rehnquist, and the Court reversed, letting the legislature’s reapportionment stand, 410 U.S. 315, 1973)
July 28
Fare v. Michael C., 439 U.S. 1310 (decided July 28, 1978): Rehnquist grants stay of California Supreme Court’s order as to minor being questioned as to a murder who asked for his probation officer (the California court held that any questioning past that point was a violation of Miranda); federal issue was involved and the criminal case could not continue unless it was resolved (the Court ended up reversing the California holding, 442 U.S. 707, 1979)
July 29
Times-Picayune Publishing Corp. v. Schulingkamp, 419 U.S. 1301 (decided July 29, 1974): Powell stays trial judge’s prior restraint order prohibiting publication of pretrial testimony; order was to stay in effect until the end of the trial, the purpose being to prevent jury being swayed by what they read in the papers. Powell’s opinion briefly reviews Court decisions weighing the right to a public trial (First and Sixth Amendments) versus the right to an impartial jury (Sixth). Defendant, age 17 at the time and black, was accused of raping and murdering a white nurse, and Powell notes that some of the reporting was “irresponsible”. However he noted no “imminent threat” to a fair trial. (Defendant was convicted and sentenced to life imprisonment; while in prison he was put on trial again for armed robbery and sentenced to 99 years. See 329 So.2d 728.)
July 30
Perez v. United States, 1970 WL 105758 (decided July 30, 1970): Harlan affirms the Second Circuit’s denial of bail; defendant had been convicted under a statute which had just been struck down by the Court on due process grounds in another case (Leary v. United States, 395 U.S. 6); Harlan says the issue of retroactivity should be examined by the full Court and it will come up next term (as it turned out it held against retroactivity in several cases, most relevant to this situation Williams v. United States, 401 U.S. 646); he also says it is hard for a Circuit Justice to rule on bail requests when the lower court (as here) gives no reason why bail was denied
Maryland v. King, 567 U.S. 1301 (decided July 30, 2012): Roberts grants stay of Maryland appellate judgment striking down on Fourth Amendment grounds statute allowing the police to draw DNA samples from arrestees; notes the split of authority below and believes the Court would grant cert and uphold the statute (which it did, 569 U.S. 435, 2013)
July 31
Ex Parte Quirin, 317 U.S. 1 (decided July 31, 1942): allows Nazi saboteurs to argue their habeas petition before the Court, but upholds Presidential order that they be tried by a special military tribunal; admits that all federal courts are functioning normally but defers to Presidential authority in time of “grave public danger” and holds that the tribunal had power to try anyone regardless of citizenship or military status (eight Germans were deposited by submarines off Florida and Long Island with cash and explosives; it was known that the Hitler regime was training saboteurs but J. Edgar Hoover was inept at finding them, preferring to order dragnets on immigrant populations; the plot came to the FBI’s attention only because the leader, a former U.S. Army soldier, decided to turn them in before anything happened; he was one of the two who was not subsequently executed, but was deported to Germany in 1948 and tried for the rest of his life to get back into the United States)