June | Deep Deep Thoughts

June

in Supreme Court History

June 1

Pierce v. Society of Sisters, 268 U.S. 510 (decided June 1, 1925): struck down Oregon statute requiring all children to go to public school as infringing liberty right of parents to decide how to educate their children, and property right of Catholic school plaintiff which would lose business

Near v. Minnesota, 283 U.S. 697 (decided June 1, 1931): striking down on First Amendment (Fourteenth) grounds statute allowing state to enjoin newspaper publishing of “malicious, scandalous or defamatory” material (articles at issue named gangsters and law enforcement who were suspiciously not pursuing them)

United States v. Cooley, 593 U.S. --- (decided June 1, 2021): tribal officer had power to conduct (otherwise legal) search and detention of non-Native American driver on public highway running through reservation (Breyer’s opinion notes that “most people living on Indian reservations are not Indians” -- I honestly never knew that)

Betts v. Brady, 316 U.S. 455 (1942) (decided June 1, 1942): government not required to provide attorney for criminal defendant who can’t afford one; affirming conviction for robbery (overruled by Gideon v. Wainwright) (one assumes Mr. Betts acted as his own lawyer at trial but one Jesse Slingluff is listed as his lawyer before the Court)

Glacier Northwest, Inc. v. Int’l Brotherhood of Teamsters Local 174, 598 U.S. 771 (decided June 1, 2023): NLRA Act did not preempt employer’s state law tort against striking workers for concrete they left behind in trucks which solidified

NAACP v. Alabama, 377 U.S. 288 (decided June 1, 1964): this entertaining opinion blows to bits the b.s. reasons the Alabama Supreme Court upheld an order forbidding the NAACP to do business in Alabama, from rejecting a brief which was in fact punctiliously drafted, to claiming the right to “oust” the organization for not paying a licensing fee when state rules provided merely for issuing a fine

Bank of America, N.A. v. Caulkett, 575 U.S. 790 (decided June 1, 2015): Chapter 7 (liquidation) debtor can’t void junior mortgage (11 U.S.C. §506(d)) even when property is already underwater due to senior mortgage

Dunbar v. Dunbar, 190 U.S. 340 (decided June 1, 1903): agreement to pay alimony not in the form of a court order but still not dischargeable in bankruptcy

Nasrallah v. Barr, 590 U.S. --- (decided June 1, 2020): court can’t review INS’s determination that noncitizen can be deported but can review his claim (under 1984 international Convention Against Torture) that he would be tortured if he’s sent back (guilty of larceny but might be tortured in Lebanon as member of Druze religion)(remanded to Circuit Court which let him stay, 824 Fed. Appx. 667)

Mifflin v. R.H. White Co., 190 U.S. 260 (decided June 1, 1903): author is not protected by copyright in publisher’s name (superseded by Copyright Act of 1909) (at issue were articles published in The Atlantic written by plaintiff’s predecessor in interest, Oliver Wendell Holmes, Sr.; it’s odd that Holmes Jr. didn’t recuse himself) (the articles were called “The Professor at the Breakfast Table” and would have made fascinating reading; Dr. Holmes, who prefigured Darwin on evolution and Freud on the unconscious, was a more interesting person than his son, who confined himself to the dreary topic of law, though he did write a children’s book)

Ebeling v. Morgan, 237 U.S. 625 (decided June 1, 1915): chronic ripper of mail sacks chargeable separately for each sack (three years prison time per sack x 5 sacks = 15 years) (arguably overruled by Bell v. United States, 1955, which rejected a Mann Act formula of 2½ years per woman x 2 women = 5 years)

June 2

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (decided June 2, 1952): President cannot seize private property (steel mills which would cripple Korean War effort due to impending strike; steelworkers were willing to work for the war effort but mill owners sued) without Congressional authorization (Congress had refused to act) (this was just a motion for a preliminary injunction, i.e. the “shadow docket”, but Court decided entire case)

Bond v. United States, 572 U.S. 844 (decided June 2, 2014): international agreement criminalizing chemical weapons as codified by Congress did not apply to vengeful wife who spread toxic chemicals on husband’s car, mailbox and doorknob (give the prosecutor credit for creativity)

Daniel v. Paul, 395 U.S. 298 (decided June 2, 1969): amusement park was not “private club” under exception to Civil Rights Act of 1964 so cannot have segregated snack bar

United States v. Santos, 553 U.S. 507 (decided June 2, 2008): defendant who received commissions from bets in illegal lottery not guilty under money laundering statute which refers only to “proceeds” and defendant did not share in lottery profits

Ann Arbor Railroad Co. v. United States, 281 U.S. 658 (decided June 2, 1930): vacating Interstate Commerce Commission order rejecting rates proposed by railroads for transporting fruit from California because its reasoning was based on wording of a joint resolution of Congress as opposed to standards and procedures set forth in Interstate Commerce Act

Jenkins v. Delaware, 395 U.S. 213 (decided June 2, 1969): Miranda (applicable to trials after June 13, 1966) is not retroactive on retrial where first trial was before that date

Denver First Nat’l Bank v. Klug, 186 U.S. 202 (decided June 2, 1902): involuntary bankruptcy, now rare, allows a creditor to sue the debtor except if the debtor is a farmer (11 U.S.C. §303(a)); here the Court held it had no jurisdiction to review a jury finding of “farmer” for a couple of boring procedural reasons, but I didn’t even know there was such a thing as involuntary bankruptcy until I read this case

Boykin v. Alabama, 395 U.S. 238 (decided June 2, 1969): death sentence vacated because defendant not questioned about the voluntariness of his guilty plea and defense of hearing on sentencing was cursory; Court could rule on these questions even though not brought up in state court appeal

Capital City Light & Fuel Co. v. Tallahassee, 186 U.S. 401 (decided June 2, 1902): City did not owe business to electric company which was successor in interest after bankruptcy of municipal corporation chartered to provide city with power

Compaigne Francaise De Navigation a Vapeur v. Louisiana State Board of Health, 186 U.S. 380 (decided June 2, 1902): state had power to exclude foreigners from quarantined city despite Constitution giving power to Congress to regulate trade with foreign nations (art. I, §8, cl. 3); Congress could preempt local law but had not acted (I suppose this means there is no “Dormant International Commerce Clause”)

June 3

Hammer v. Dagenhart, 247 U.S. 251 (decided June 3, 1918): Interstate Commerce Clause did not authorize Congress to forbid child labor (specifically, to forbid interstate sale of goods produced by child labor) (overruled by United States v. Darby Lumber Co., 1941)

Morgan v. Virginia, 328 U.S. 373 (decided June 3, 1946): (argued by Thurgood Marshall) Virginia law enforcing segregation on interstate buses violated Dormant Commerce Clause; decision was routinely ignored for years

Van Buren v. United States, 593 U.S. --- (decided June 3, 2021): policeman who used his patrol car computer to find license plate information for outside income did not violate the Computer Fraud and Abuse Act which applies to computer-accessed information “that the accesser is not entitled so to obtain” (and as a police officer he was entitled to obtain that information) (the whole case depended on that word “so”, which to me argues against this result)

Maryland v. King, 569 U.S. 435 (decided June, 3, 2013): no warrant needed for minimally invasive DNA test (swab inside mouth) during booking for serious crime (rape)

Jencks v. United States, 353 U.S. 657 (decided June 3, 1957): conviction of labor union president for lying about Communist Party membership vacated because government would not submit reports made by government informants to in camera inspection

Witherspoon v. Illinois, 391 U.S. 510 (decided June 3, 1968): jurors can be excluded if they say they would never vote for execution but not if they merely express scruples about the death penalty

Hillman v. Maretta, 569 U.S. 483 (decided June 3, 2013): widow of second marriage not entitled to life insurance proceeds because husband never changed the name of the beneficiary; this is irrelevant under state statute but preempted by federal law on life insurance policies given to federal employees

Fort Bend County, Texas v. Davis, 587 U.S. --- (decided June 3, 2019): Title VII requirement to file information with EEOC prior to filing suit is not “jurisdictional” (i.e., suit can go forward if defendant doesn’t timely object) (sexual harassment suit; employer didn’t bring up filing deficiency until years into litigation)

Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (decided June 3, 1996): Burford abstention (as to challenges to state administrative agency orders) not applicable where suit is for damages and not equitable or discretionary relief (here, a breach of contract suit against Allstate brought by state insurance commissioner as trustee of bankrupt insurer)

Edmonson v. Leesville Concrete Co., 500 U.S. 614 (decided June 3, 1991): extended the Batson principle (jurors can’t be excluded based on race) to civil suits

June 4

Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. --- (decided June 4, 2018): First Amendment protected cakeshop owner’s refusal on religious grounds to create a same-sex wedding cake

Meyer v. Nebraska, 262 U.S. 390 (decided June 4, 1923): struck down on due process grounds state law prohibiting teaching of foreign languages to children before eighth grade (10-year-old child was taught German at a Lutheran religious school) (in those days most older Lutherans were German speakers; they were prosecuted for passing on their native language)

Peel v. Attorney Disciplinary Comm’n of Florida, 496 U.S. 91 (decided June 4, 1990): lawyer was not misleading clients with letterhead identifying him as certified in trial advocacy by the NBTA (National Board of Trial Advocacy) despite impression some might get that NBTA was a governmental entity; censure vacated

Uttecht v. Brown, 551 U.S. 1 (decided June 4, 2007): trial judge has first hand knowledge of juror’s demeanor and should be deferred to as to whether he can be excluded based on suspicion that he would refuse to follow the law in reaching a verdict (here, whether he could apply the death penalty)

Madera Sugar Pine Co. v. Industrial Accident Comm’n, 262 U.S. 499 (decided June 4, 1923): rejects employer’s claim that paying worker’s compensation death benefits to family of resident alien residing in Mexico denied it Equal Protection

Reichle v. Howards, 566 U.S. 658 (decided June 4, 2012): Secret Service agents who arrested plaintiff for harassment (he criticized Vice President Cheney to his face about Iraq and touched his shoulder as he left) enjoyed qualified immunity; can’t say it was contrary to law to arrest for probable cause in retaliation for exercising First Amendment rights

English v. General Electric Co., 496 U.S. 72 (decided June 4, 1990): 42 U.S.C. §5851(g) (making it unlawful to terminate nuclear industry employees in retaliation for making safety complaints) does not preempt state law claim for intentional infliction of emotional distress (harassed due to making noise about failure to properly decontaminate work areas)

Olmstead v. United States, 277 U.S. 438 (decided June 4, 1928): wiretapping a telephone was not a “search” under the Fourth Amendment (overruled by Katz v. United States, 1967)

Walling v. Harnischfeger Corp., 325 U.S. 427 (decided June 4, 1945): incentive pay structure for piecework (electrical components) had effect of evading Fair Labor Standards Act §7(a) which requires overtime to be 50% of regular rate

Dennis v. United States, 341 U.S. 494 (decided June 4, 1951): Smith Act (forbidding attempt to overthrow government through violence) does not violate First Amendment because it is restricted to speech advocating plan of violence; affirmed convictions of Communist Party-USA founders

June 5

Coleman v. Miller, 307 U.S. 433 (decided June 5, 1939): there is no time limit on states ratifying proposed Constitutional Amendments (here, a Child Labor Amendment) unless Congress has set a deadline

Henderson v. United States, 339 U.S. 816 (decided June 5, 1950): segregated dining cars in trains (different tables, with partition) violated Interstate Commerce Act (plaintiff had been told to take dinner in his cabin because the “reserved for blacks” tables were partly occupied by whites)

Hernandez v. Commissoner, 490 U.S. 680 (decided June 5, 1989): payments to Church of Scientology for training sessions are not deductible “charitable contributions” because services were received (“quid pro quo”)

Honeycutt v. United States, 581 U.S. 443 (decided June 5, 2017): brother who was co-conspirator in selling huge quantities of iodine crystals which they should have known were used to make meth not jointly liable for forfeiture of profits gained from sales because he had no ownership interest in the hardware store and received no direct income from them

Castillo v. United States, 530 U.S. 120 (decided June 5, 2000): additional “machinegun” language in statute criminalizing use of firearm while committing violent crime was an element of the crime and not a sentencing factor

United States v. Jin Fuey Moy, 241 U.S. 394 (decided June 5, 1916): statute imposing registration and tax requirement on prescription of opium did not apply to defendant who was not among class of persons required to register

Cubbins v. Mississippi River Comm’n, 241 U.S. 351 (decided June 5, 1916): suit against commission for damages as to flooding of riverside property caused by construction of levees dismissed as barred by sovereign immunity (of the United States) which had created the commission

Zedner v. United States, 547 U.S. 489 (decided June 5, 2006): bank fraud defendant not bound by permanent waiver of right to speedy trial which judge encouraged him to sign early on

Stump v. Sparkman, 435 U.S. 349 (decided June 5, 1978): dismissing suit against judge who granted mother’s petition to have her daughter’s tubes tied and she underwent procedure being told it was an appendectomy; judge committed “grave procedural error” but was immune from suit because he did have jurisdiction over the petition

Troxel v. Granville, 530 U.S. 57 (decided June 5, 2000): State of Washington statute allowing “any person” to petition for visitation rights “at any time” without showing of parental malfeasance interfered with parent’s Due Process right to raise child (grandparents wanted to visit their deceased son’s children -- he had died by suicide -- but the mother wanted only “one short visit” per month -- there’s more to this story!)

June 6

Gonzalez v. Raich, 545 U.S. 1 (decided June 6, 2005): Commerce Clause allows Congress to criminalize home grown cannabis even if state allows it for medicinal use; “might” be used in interstate commerce or be part of interstate market (Wickard v. Fillburn lives!)

Monell v. Dep’t of Social Services, 436 U.S. 658 (decided June 6, 1978): §1983 suits can be brought against municipalities but only for policies (not acts) that discriminate (here, New York City policy forcing female teachers to take unpaid maternity leave even while still able to work)

Ross v. Blake, 578 U.S. 632 (decided June 6, 2016): prisoner assaulted by guard is required by the strict language of the Prison Litigation Reform Act to exhaust administrative remedies before bringing 42 U.S.C. §1983 suit though not if remedies are unavailable

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (decided June 6, 1995): Ohio statute forbidding anonymous campaign literature being handed out on political questions (here, leaflets to parents as to proposed school tax) invalidated under First Amendment (would Ohio have banned all those anonymous handbills that went around during the Constitution ratification debate?)

Scarborough v. United States, 431 U.S. 563 (decided June 6, 1977): Congress had Commerce Clause authority to criminalize firearms possession by felon (predicate felony was drug possession) despite fact that firearms were possessed before the drug offense and no contemporaneous nexus between their being in interstate commerce and drug possession

Southwest Airlines Co. v. Saxon, 596 U.S. --- (decided June 6, 2022): person working cargo ramps at airport falls within Federal Arbitration Act exemption for those working in interstate transportation and therefore not bound by arbitration clause (class action wage claim can proceed) (as a double bassist let me say that Southwest Airlines is the preferred airline for transporting our instruments; they take great care and are not freaked out by those coffin-sized travel cases)

Sheppard v. Maxwell, 384 U.S. 333 (decided June 6, 1966): conviction after well publicized murder trial vacated because judge took no steps to minimize effect of publicity on jurors (did not exclude media, did not sequester jurors)

Gallardo v. Marstiller, 596 U.S. --- (decided June 6, 2022): I was recently asked to talk about this case in an unavoidably boring presentation on settling liens in personal injury cases. Here, the Court holds that 42 U.S.C. §1396k(a)(1)(A) allows Medicaid to recoup part of settlement ascribable to likely future medical costs (i.e., costs it hasn’t actually incurred and may never incur).

Alabama Power Co. v. Davis, 431 U.S. 581 (decided June 6, 1977): pension must credit time spent in World War II military service (citing Military Selective Service Act) because “reasonable certainty” shown that claimant would have continued working for same employer during that time (he went right back to them after war was over)

Pickett v. Brown, 462 U.S. 1 (decided June 6, 1983): Tennessee law providing that any action to establish paternity be brought within two years of birth violated child’s Equal Protection right due to practical burdens of mother suing within that time (such as finding the father)

June 7

Griswold v. Connecticut, 381 U.S. 479 (decided June 7, 1965): Fourteenth Amendment violated by statute outlawing sale of contraceptives; right to privacy makes enumerated rights more secure

Cohen v. California, 403 U.S. 15 (decided June 7, 1971): First Amendment protects immature jerkoff’s right to wear “Fuck the Draft” jacket in courthouse (contrast this guy with the brave schoolchildren in Minersville v. Gobitis)

Sanchez v. Mayorkas, 593 U.S. --- (decided June 7, 2021): El Salvadoran who obtained Temporary Protected Status in 2001 due to conditions in his home country (devastating earthquakes) but who entered this country illegally in 1997 was properly denied green card

Krupski v. Costa Crociere, 560 U.S. 538 (decided June 7, 2010): This case deals with the pesky “relation back” doctrine (here, F.R.C.P. 15(c)), where you can add a party past the statute of limitations has expired if it got notice of the claim via service of a timely-sued party united in interest with it. The Court holds that the focus is not on plaintiff’s diligence in finally ascertaining the correct party but on the extent of the new party’s timely knowledge of the allegations. Suit was for injuries on a cruise ship.

Colorado General Assembly v. Salazar, 541 U.S. 1093 (decided June 7, 2004): In 2003 Republicans took over the Colorado legislature and tried to redistrict despite it being done only the year before (it’s supposed to be only once every ten years). This was rejected by the state Supreme Court. Here we see Rehnquist, Scalia and Thomas dissenting to the denial of cert, citing the Constitutional guarantee that each state have “a Republican Form of Government” (ha).

National Prohibition Cases, 253 U.S. 350 (decided June 7, 1920): rejects various procedural objections to the adoption of the Eighteenth Amendment: the required vote of both Houses was two-thirds of the quorum, not of the total members; the resolution did not have to say that the Amendment was “necessary”; the Amendment does not depend on Commerce Clause restrictions but is an independent part of the Constitution; it is operative in the territories; etc.

Minn v. Dickerson, 508 U.S. 366 (decided June 7, 1993): during a stop and frisk, police officer was attracted to lump in man’s pants and felt it up; it turned out to be cocaine, but he needed a warrant to do that because he already knew it wasn’t a gun (let the jokes begin)

Republic of Austria v. Altmann, 541 U.S. 677 (decided June 7, 2004): suit can proceed for recovery of paintings taken by Nazis (later discovered in Austrian art gallery) as allowed by Foreign Soverign Immunities Act even though claim arose before FSIA was enacted in 1976 and even before suit against foreign nations was first allowed by Court in 1952

Savage v. Jones, 225 U.S. 501 (decided June 7, 1912): state law requiring inspection of animal feed is valid exercise of police powers and does not violate Dormant Commerce Clause even though “incidentally affects interstate commerce”

Murphy v. California, 225 U.S. 623 (decided June 7, 1912): local ordinance forbidding pool halls does not violate Equal Protection of pool hall owner and was permissible use of police power despite lack of evidence that it was a corrupting influence, because they’ve got Trouble with a capital T and that rhymes with P and that stands for Pool

June 8

Gitlow v. New York, 268 U.S. 652 (decided June 8, 1925): New York’s “criminal anarchy” statute (still on the books!) permissible despite First Amendment because it penalizes advocating violent overthrow of government (here, an early Communist tract) --

-- limited by Brandenburg v. Ohio, 395 U.S. 444 (also decided June 8, but in 1969): First Amendment protected pro-Klan rally at which people dressed in white robes and lit crosses because no “imminent lawless action” urged (perhaps a different result if speech was made in a black neighborhood)

Lomax v. Ortiz-Marquez, 590 U.S. --- (decided June 8, 2020): applying Prison Litigation Reform Act prohibition on in forma pauperis petitions if there have been three previous dismissals as frivolous or for failure to state a claim, even though two of them stated they were without prejudice

Health and Hospital Corp. of Marion County v. Talevski, 599 U.S. 166 (decided June 8, 2023): public nursing homes can be sued under §1983 based on violations of Federal Nursing Home Reform Act of 1987 (here, as to improper restraints and transfers)

Muscarello v. United States, 524 U.S. 125 (decided June 8, 1998): “carrying a firearm” aggravation factor in drug trafficking charge includes firearm in vehicle used for drug transaction even though not picked up

Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (decided June 8, 2009): appellate judge should have recused himself on review of large verdict against company whose CEO had bankrolled his election campaign (unsurprisingly, the judge had voted to throw out the verdict)

Zivotofsky v. Kerry, 576 U.S. 1 (decided June 8, 2015): striking Act of Congress allowing American citizen born in Jerusalem to list his place of birth as “Israel” despite Jerusalem not recognized as Israel’s capital; President has exclusive power to recognize foreign nations and can disregard Congressional directives (this result is ironic, given Truman’s immediate recognition of Israel in 1948)

Houston, E. & W.T.R. Co., 234 U.S. 342 (decided June 8, 1914): state violated Dormant Commerce Clause by authorizing different railroad rates for intrastate and out-of-state travel

Virginia v. West Virginia, 234 U.S. 117 (decided June 8, 1914): sur-reply by West Virginia allowed though not authorized by rules because states as litigants in this original jurisdiction case are entitled to procedural slack (this was a dispute, won by Virginia, as to reimbursment for public works projects when W. Va. was still part of that state) (Virginia was given a lot of slack too; it didn’t file a complaint until 1906, 45 years later; there must be no statute of limitations on claims by state vs. state)

Burdick v. Takushi, 504 U.S. 428 (decided June 8, 1992): Hawaii prohibition on write-in voting did not violate First Amendment right to free association because Hawaii has liberal rules allowing candidates to get onto ballot

Dalehite v. United States, 346 U.S. 15 (decided June 8, 1953): 2300 tons of fertilizer made at the direction of the federal government and under its control exploded, causing a chain reaction of oil fires which killed 581 people. Personal injury suits dismissed because of Tort Claims Act exception for “discretionary” acts with no negligence shown. (Congress subsequently passed a law allowing the victims to sue)

June 9

Carey v. Population Services Int’l, 431 U.S. 678 (decided June 9, 1977): statute prohibiting sale of non-prescription contraceptives, and contraceptives to minors, violated Due Process right to privacy/liberty (you can see Brennan’s hard work here -- cobbling together a majority but with fractured opinions)

Randon v. Toby, 52 U.S. 493 (decided June 9, 1851): fact that loan was used to buy slaves which had been illegally imported from Africa to Texas did not make it an “illegal contract” such that plaintiff could not sue on the loan; Court compared this argument to a man who won’t pay his tailor because the importer had smuggled the cloth

Williams v. Pennsylvania, 579 U.S. 1 (decided June 9, 2016): judge must recuse himself in death penalty babeas petition because he was the D.A. who brought the prosecution

Microsoft Corp. v. i4i Limited Partnership, 564 U.S. 91 (decided June 9, 2011): patents are presumed valid (35 U.S.C. §282); defendant claiming invalidity must prove by clear and convincing evidence (i4i had developed document editing method independent of metacodes; original source code had been destroyed, so evidence adduced as to possible waiver via prior sale) (Microsoft eventually lost; it continued to infringe, but i4i lost motion to reopen action and cite for contempt, see 398 F. Supp. 3d 90, 2019)

Commonwealth of Puerto Rico v. Sanchez Valle, 579 U.S. 59 (decided June 9, 2016): Double Jeopardy bars prosecutions of the same conduct (illegal gun sale) by Puerto Rico and by the federal government; unlike a State, P.R. is not a separate “sovereign”

Dietz v. Bouldin, 579 U.S. 40 (decided June 9, 2016): District Court judge has power to recall jury and instruct them to re-deliberate after they returned a baseless verdict (finding $0 in damages in auto injury case even though both sides had stipulated to at least $10,136)

CTS Corp. v. Waldburger, 573 U.S. 1 (decided June 9, 2014): “superfund” law (CERCLA) preempts state statutes of limitations but not state statutes of repose (which start to run when a specified event occurs); North Carolina law barring actions brought more than 10 years after last culpable act (sale of property) applied to dismiss suit against polluter who had sold the property 24 years previously (statute of limitations by contrast began to run from date of damage/discovery)

Omaha & C.B.S.R. Co. v. Interstate Commerce Comm’n, 230 U.S. 324 (decided June 9, 1913): street railroads (run not on land owned by the railroad company but on public street as an aid to street traffic) did not fit definition of “railroad” in the ICC Act of 1887 and therefore ICC had no power to set rates

United States v. Lovasco, 431 U.S. 783 (decided June 9, 1977): speedy trial requirement of Sixth Amendment does not apply to time between crime and indictment (here, 18 months) even if delay is unexplained (opinion written by Marshall!)

Pruneyard Shopping Center v. Robins, 447 U.S. 74 (decided June 9, 1980): upholds against Takings Clause and Privileges and Immunities attack California law requiring owners of private property open to public to allow political speech (here, students in shopping center had set up table protesting “a United Nations resolution against Zionism”) (this must have been the infamous resolution equating Zionism with racism -- ironic because some early Zionists were antisemites, who were glad to pack Jews off to faraway Palestine; even the Nazis arranged it early on)

June 10

Terry v. Ohio, 392 U.S. 1 (decided June 10, 1968): allowed “stop and frisk” without warrant if suspicion of armed and involved in a crime (from whence came the term “Terry stop”)

Whren v. United States, 517 U.S. 806 (decided June 10, 1996): any traffic offense (here, speeding when approached by police) is pretext for stopping car (after which police saw two bags of cocaine in front seat)

Borden v. United States, 593 U.S. --- (decided June 10, 2021): enhanced sentence under Armed Career Criminal Act provision as to three previous armed felonies not applicable because one of the earlier convictions was based on reckless (not intentional) conduct

City of Chicago v. Morales, 527 U.S. 41 (decided June 10, 1999): Chicago ordinance prohibiting “criminal street gang members” from loitering struck down on due process grounds as too vague and an arbitrary restriction on personal liberties

Oxford Health Plans v. Sutter, 569 U.S. 564 (decided June 10,2013): arbitrator had authority under contract to authorize class action of physicians’ claim against health plan for prompt payment; contract gave arbitrator the authority to construe the contract (!) so “arbitrator’s construction holds, however good, bad, or ugly”

Ringhiser v. Chesapeake & Ohio Ry. Co., 354 U.S. 901 (decided June 10, 1957): steel plates stacked next to toilet shifted during switching operation and crushed leg of engineer who was “answering call of nature”; jury should be allowed to determine whether the railroad should have known this kind of thing might happen

McKune v. Lile, 536 U.S. 24 (decided June 10, 2002): no violation of Fifth Amendment where convicted rapist was threatened with transfer to maximum security prison if he refused therapy, even though counseling was not confidential and statements could be used against him

Jenkins v. Anderson, 447 U.S. 231 (decided June 10, 1980): defendant’s silence can be used against him if the silence was pre-arrest, i.e., before Miranda warnings had to be given (here, his defense to murder was self-defense but oddly he never told police that)

Standard Stock Food Co. v. Wright, 225 U.S. 540 (decided June 10, 1912): Iowa law requiring listing of certain ingredients on containers of animal feed did not violate Dormant Commerce Clause; this was an inspection law and effect on interstate commerce was “incidental” even though the feed was shipped to Nebraska

Chicago, R.I. & P.R. Co. v. Brown, 229 U.S. 317 (decided June 10, 1913): upholding verdict for switchman whose leg was cut off by colliding railroad cars due to defective safety hook (in violation of federal statute); it was not contributory negligence for him to go in between the cars because he had to move quickly to prevent collision (this principle was played for laughs in a much less serious case, Cordas v. Peerless Transp. Co., the most garishly written opinion in history)

June 11

Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (decided June 11, 1993): ordinance prohibiting unnecessary killing of animal in ceremony not for use as food (Santería) struck down as violating church’s First Amendment rights (ordinance was passed “in direct response to the opening of the church” -- but what if it was preexisting?)

Husted v. A. Philip Randolph Institute, 584 U.S. --- (decided June 11, 2018): Ohio’s presumption that voters who don’t return card and don’t vote for four years have moved (and are therefore struck from the rolls) upheld as consistent with National Voter Registration Act of 1993 (hardly seems like a fair rule)

Sveen v. Melin, 584 U.S. --- (decided June 11, 2018): applying Minnesota’s statute automatically revoking claim on life insurance upon divorce to pre-statute policies did not violate Contracts Clause, art. I, §10, cl. 1; did not change the expectations of the policyholder or of ex-wife (questionable decision; there are various kinds of divorce)

Kyllo v. United States, 533 U.S. 27 (decided June 11, 2001): police needed warrant to use thermal-imaging device to detect high-intensity lamps (used to grow marijuana in a house; I had a friend who used to do that, circa 1982) because device not in general public use and revealed information otherwise unobtainable without physical intrusion

United States v. Eichman, 496 U.S. 310 (decided June 11, 1990): struck down another flag desecration law (like Texas v. Johnson) on First Amendment grounds; unlike in Johnson, this one did not require that flag desecration be associated with a political message (Doonesbury had a good comic strip on this while the case was pending: the first panel had an American flag and Mike Doonesbury dared readers to throw the newspaper out, unavoidably desecrating the flag and breaking that law)

Great American Federal Savings & Loan v. Novotny, 442 U.S. 366 (decided June 11, 1979): male fired after complaining of discrimination against female employees might have Title VII claim but can’t sue directly under 42 U.S.C. §1985(3) (conspiracy to deprive of civil rights); must go through EEOC first

Bluefield Water Works v. Public Service Comm’n, 262 U.S. 679 (decided June 11, 1923): order setting public utility’s rates so low that it wouldn’t earn a return was a “taking” without just compensation

China Agritech Inc. v. Resh, 584 U.S. --- (decided June 11, 2018): failure-to-get-class-certification tolling of statute of limitations available to putative class members to sue on their own (American Pipe v. Utah, 1974) does not apply to future attempts at class action

Nix v. United States, 467 U.S. 431 (decided June 11, 1984): evidence is not excluded which would have been discovered anyway despite police misconduct (body would have been found anyway even though location told to police while being denied right to counsel) (“independent source rule” and “inevitable discovery rule”)

Paine Lumber Co. v. Neal, 244 U.S. 459 (decided June 11, 1917): Sherman Act does not provide for private parties going to court to stop alleged restraint on trade (here, windowmaking companies trying to stop a union boycott)

June 12

Loving v. Virginia, 388 U.S. 1 (decided June 12, 1967): striking down on Equal Protection and (substantive) Due Process grounds Virginia’s prohibition on interracial marriage (a good decision for me personally) (in the trial court the one-year sentence imposed on the Lovings, who had gone to D.C. to get married and were indicted when they moved back to Virginia, had been suspended on the condition that they move out of state and not return for 25 years, not so coincidentally after Mildred was past childbearing age)

Sessions v. Morales-Santana, 582 U.S. 47 (decided June 12, 2017): striking down requirement that foreign-born non-marital children seeking citizenship needed a U.S. citizen father who had been in the country for at least five years before birth while for a U.S. citizen mother needed only one year (8 U.S.C. §1409)

Munaf v. Geren, 553 U.S. 674 (decided June 12, 2008): American citizens held by the post-Iraq-invasion Multi-National Force (allegation was helping al Qaeda, kidnapping) can petition for habeas corpus (the MNF was about to transfer them to a local criminal court for trial), but petition denied here because Iraq had sovereign right to try crimes committed on its soil (our regard for Iraq’s sovereignty is truly touching /s)

Henson v. Santander Consumer USA, 582 U.S. 79 (decided June 12, 2017): Fair Debt Collection Practices Act applies only to those collecting debt “for another”; does not apply to creditor collecting debt for itself, and therefore also doesn’t apply to company which regularly purchases other companies’ debts (opinion by Gorsuch, a wonderfully clear and unpretentious writer)

POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102 (decided June 12, 2014): Food, Drug and Cosmetic Act does not preclude private action for false advertising on a matter the FDA has not set a rule for (Coca-Cola Co. sold “pomegranate-blueberry drink” with only minimal amounts of both) (jury decided for Coca-Cola in March 2016)

Adarand Constr. v. Peña, 515 U.S. 200 (decided June 12, 1995): use of race-based presumptions in approving economically disadvantaged subcontractors on federal projects viewed under “strict scrutiny”, not a more lenient standard (at issue was the awarding of federal highway construction contracts)

Argersinger v. Hamlin, 407 U.S. 25 (decided June 12, 1972): right to have counsel provided (Gideon) applies to all criminal prosecutions not just to those to which the right to trial by jury attaches (which is maximum sentence six months or more)

House v. Bell, 547 U.S. 518 (decided June 12, 2006): habeas after rape/murder conviction may go forward based on chain of custody problems (not heard by the jury) as to the incriminating blood and possible confession of victim’s husband; no proof of “actual innocence” but enough to show that some jurors might have reasonable doubt

New York v. Quarles, 467 U.S. 649 (decided June 12, 1984): statement by handcuffed defendant in supermarket as to nearby location of gun admitted into evidence under “public safety” exception to Miranda (rape victim had told police he had run into supermarket and had a gun; police chased him and found him unarmed)

New York et rel. Kennedy v. Becker, 241 U.S. 556 (decided June 12, 1916): Seneca tribe bound by state fish and game laws despite what was promised to them in 1797 treaty because land in question was not on a reservation

June 13

Miranda v. Arizona, 384 U.S. 436 (decided June 13, 1966): asking questions of detained witness without advising of right to remain silent violates Fifth Amendment guarantee against self incrimination (Congress tried to abrogate this holding by statute in 1968, but the statute was chipped away at and finally struck down in Dickerson v. United States, 2000) (Miranda was re-tried in Arizona court without the invalid confession and convicted; charge was rape and kidnapping, 104 Ariz. 174)

Romano v. Oklahoma, 512 U.S. 1 (decided June 13, 1994): jury can consider defendant’s previous death sentence (for a concomitant killing) in determining sentence for murder

ZF Automotive US v. Luxshare, Ltd., 596 U.S. --- (decided June 13, 2022): overseas arbitration proceedings are not “foreign tribunals” for which discovery can be sought under 28 U.S.C. §1782

United States v. Bryant, 579 U.S. 140 (decided June 13, 2016): upholding 18 U.S.C. §117(a), which requires increased penalty for domestic violence on Native American Reservations if two previous convictions in Native American courts even if not represented by counsel; Sixth Amendment right to counsel does not apply in Native American courts for crimes with penalties of less than one year, 25 U.S.C. §1302(c)(2), and procedural protections of Indian Civil Rights Act of 1968 were adequate

Kemp v. United States, 596 U.S. --- (decided June 13, 2022): instead of appealing, defendant must get relief from final judgment under F.R.C.P. 60(b)(1) where court makes procedural mistake even though mistake not obvious (Eleventh Circuit had miscalculated time after drug conviction to seek cert) (and here defendant had missed the applicable deadline for a 60(b)(1) motion) (in the Court’s historical review of postjudgment relief it uses the evocative phrase, “statutory language obviously transplanted from another legal source will often bring the old soil with it”)

Nyquist v. Mauclet, 432 U.S. 1 (decided June 13, 1977): denying college financial assistance to resident aliens violates Equal Protection

Puerto Rico v. Franklin California Tax-Free Trust, 579 U.S. 115 (decided June 13, 2016): Puerto Rico statute allowing public utilities to structure their debts preempted by federal Bankruptcy Code (Puerto Rico was undergoing a fiscal crisis and found it had been singled out in a mysterious change to the Bankruptcy Code which of course it had no voice in; see John Oliver’s segment on this, https://youtu.be/Tt-mpuR_QHQ , starting at 9:00)

Montana v. Egelhoff, 518 U.S. 37 (decided June 13, 1996): Due Process not offended by state law barring defendant from arguing he was intoxicated as a defense to mental state required for crime (here, murder by gunshot wound) (his blood alcohol was 0.36% even some hours after the incident! 0.5% will kill you)

Katzenbach v. Morgan, 384 U.S. 641 (decided June 13, 1966): Voting Rights Act requiring everyone with a sixth grade education to be allowed to vote superseded New York law requiring proficiency in English (this would have applied specifically to my grandfather, who went up to sixth grade in Italy but was never functionally literate in English; his career as a groundskeeper started in the WPA under FDR but by the time I got to know him he voted consistently Republican)

Gojack v. United States, 384 U.S. 702 (decided June 13, 1966): contempt against person who spoke back to HUAC and didn’t answer questions reversed because HUAC never formally authorized investigation into this area (“Communist Party activity in the field of labor”)

June 14

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (decided June 14, 1943): explicitly overrules Minersville v. Gobitis, 1940, and holds that refusal to salute flag and recite pledge as part of regular school day was protected by First and Fourteenth Amendments (Court holds that this was impermissible “compelled speech”; plaintiffs were Jehovah’s Witnesses; school had softened earlier versions of the pledge which other parents had said sounded “too much like Hitler’s”)

Taylor v. Mississippi, 319 U.S. 583 (decided June 14, 1943): companion case to Barnette, holding that speech urging that the flag not be saluted is protected by the First and Fourteenth Amendments

Elk Grove Unified School District v. Newdow, 542 U.S. 1 (decided June 14, 2004): atheist father did not have standing to challenge school requiring daughter to say “under God” in the Pledge of Allegiance as violating First Amendment (mother, who had legal custody, intervened to oppose and even a lot of liberals criticized the father for putting his daughter into the center of a publicized Constitutional as well as family dispute)

National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (decided June 14, 1977): Here the Court criticizes the Illinois Supreme Court’s use of its “shadow docket” to in effect dispose of the merits. Suit was to enjoin American Nazis from marching in a community filled with Holocaust survivors. The state court lifted a lower court’s stay, i.e., the march would happen before a full appeal could be heard. The Supreme Court holds that the removal of the stay acted as an appealable final judgment, treats the motion to reinstate the stay as a full appeal, grants the motion, and sends the case back to state court to decide whether the Nazis’ First Amendment rights had been curtailed without procedural safeguards. (The state court then held that they had been, and allowed the march to go forward, 373 N.E.2d 21, which it did on June 25, 1978, and it was a dud, outnumbered by protesters.) (This incident resulted in a very good TV movie, with a cast of old Jewish actors familiar to my parents’ generation playing survivors, headed by Danny Kaye in his only dramatic role.)

Greer v. United States, 593 U.S. --- (decided June 14, 2021): jury instruction that conviction for possession of firearm while a convicted felon required a showing that the defendant knew he had felony convictions not necessary in this case because with a multiple felony record defendant could be presumed to have known it

Minnesota Voters Alliance v. Mansky, 585 U.S. --- (decided June 14, 2018): ban on entering a polling place while wearing a political message violated First Amendment (here, a “Don’t Tread on Me” shirt)

Animal Science Products v. Hebei Welcome Pharmaceutical Co., 585 U.S. --- (decided June 14, 2018): federal court doesn’t have to follow foreign government’s construction of its own law as submitted in its official brief, though must give it weight (class action alleging price-fixing under Sherman Act against Chinese sellers of Vitamin C; Chinese government asserted that pricing regime was mandated by Chinese law) (verdict had been for plaintiff; on remand the Second Circuit dismissed anyway on international comity grounds, 8 F.4th 136)

Pennsylvania State Police v. Suders, 542 U.S. 129 (decided June 14, 2004): where plaintiff alleges “constructive discharge” (sexual harassment so intolerable she had to resign) defendant has burden to show that she failed to mitigate harm (e.g., by filing complaints, which it looks like this woman did, though to little effect)

Palmer v. Thompson, 403 U.S. 217 (decided June 14, 1971): no Equal Protection violation when city after being ordered to desegregate public swimming pools instead closed them (I used to live in a Southern town which did that, but it had only one pool and it was whites only; this city had a pool for blacks which got closed along with the whites-only pools) (wrinkle in this case is that city was the lessee on one of the white pools and the owner subsequently reopened it as whites-only); 5 - 4 decision

McDonald v. Pless, 238 U.S. 264 (decided June 14, 1915): denied motion to set aside verdict by applying the common law rule that a juror cannot testify as to misconduct in the jury room (here, an impermissible quotient verdict) (that’s not the rule in New York, at least not now, though one can’t formally question a juror post-verdict without a good reason)

West v. Gibson, 527 U.S. 212 (decided June 14, 1999): 1991 amendment to Title VII is read to allow the EEOC to award “appropriate” (language from original 1972 Act) compensatory damages instead of just back pay (“Words in statutes can enlarge or contract their scope as other changes, in law or in the world, require their application to new instances or make old applications anachronistic [citations]”)

June 15

Bostock v. Clayton County, 590 U.S. --- (decided June 15, 2020): Civil Rights Act of 1964 (Title VII) prohibits firing an employee for being gay or transgender (county didn’t know one plaintiff was gay until he joined gay softball league; other plaintiff happened to mention to his co-employee at a skydiving school that he was gay; third plaintiff was hired as male and “transitioned” due to gender dysphoria); Title VII also applies to transgender because fired “for traits or actions it would not have questioned in members of a different sex” (Gorsuch, writing for a 6 - 3 Court, admits that the word “sex” as used in 1964 was not meant to cover these situations)

Rosenberg v. United States, 345 U.S. 989 (decided June 15, 1953): denied stay of execution of Julius and Ethel Rosenberg; executed four days later for passing atomic secrets to the Soviets (case against Ethel was admittedly not strong but used unsuccessfully as “lever” to get Julius to talk; Julius could have cleared Ethel, saving her life, if he admitted his own guilt, which he could have done up to the last moment)

Haaland v. Brackeen, 599 U.S. 255 (decided June 15, 2023): Indian Child Welfare Act was not outside Congress’s Article I power (tribe could enforce ICWA preference for Indian family even though adoption by non-Indian family was supported by both biological parents)

Aguilar v. Texas, 378 U.S. 108 (decided June 15, 1964): evidence based on search warrant which was vague (based on hearsay, did not identify informant or particulars as to why heroin possession was suspected) should have been excluded

Napue v. Illinois, 360 U.S. 264 (decided June 15, 1969): vacated conviction based on false testimony by state witness (that he was not being paid for his testimony) which prosecutor did nothing to correct

Reynolds v. Sims, 377 U.S. 533 (decided June 15, 1964): Alabama can’t base its legislature on “federal model” (one senator per county); Fourteenth Amendment Equal Protection clause requires both houses to be apportioned by population; in dissent Harlan points out Congress saw no problem with this setup in Alabama and other “reconstructed” states (“It is incredible that Congress would have exacted ratification of the Fourteenth Amendment as the price of readmission, would have studied the State Constitutions for compliance with the Amendment, and would then have disregarded violations of it”)

Golan v. Saada, 596 U.S. --- (decided June 15, 2022): under Hague Convention, court can deny violent father’s request to return child to home country without considering “ameliorative measures” (e.g., order of protection, therapy)

Viking River Cruises v. Moriana, 596 U.S. --- (decided June 15, 2022): minimum wage/overtime state court suit allowed by California law despite arbitration provision in employment contract preempted by Federal Arbitration Act (FAA wouldn’t preempt suit under California’s “private attorney general” statute but plaintiff lacked standing)

Barrows v. Jackson, 346 U.S. 249 (decided June 15, 1953): throwing out suit by homeowners against seller who sold house to black family (in violation of racially restrictive covenant) because order enforcing covenant would be state action violating Equal Protection (this reasoning would turn any private dispute that wound up in court into “state action”)

Burns v. Ohio, 360 U.S. 252 (decided June 15, 1959): struck down state court requirement that indigent criminal defendant pay a fee to make motion for leave to appeal (the appealable “final judgment” here was the letter of the clerk rejecting the motion because no fee attached)

Mulloy v. United States, 398 U.S. 410 (decided June 15, 1970): threw out conviction for draft evasion because draftee’s documentation as to conscientious objector status was not formally considered

June 16

Bigelow v. Virginia, 421 U.S. 809 (decided June 16, 1975): with abortion now legal with Roe v. Wade, First Amendment violated by statute criminalizing advertising for abortions

Susan B. Anthony List v. Driehaus, 573 U.S. 149 (decided June 16, 2014): pro-life group making pre-enforcement challenge to law prohibiting false statements during election campaigns alleged enough “imminent” (as opposed to “chimerical”) harm to create “case or controversy” allowing suit to go forward (here, they had falsely claimed that a Congressman had voted for taxpayer-funded abortions) (law eventually struck as in violation of First Amendment, 814 F.3d 466) (BTW he lost the election)

Kirtsaeng v. John Wiley & Sons, 579 U.S. 197 (decided June 16, 2016): court doesn’t have to award attorney’s fees (as is allowed by Copyright Act) if losing party pursued reasonably strong argument (defendant bought plaintiff's textbooks in Thailand and resold them in the U.S. for far less than what plaintiff was charging for them here; he won on his defense of the “first sale doctrine” -- any purchaser of a book can re-sell -- but copyright holder’s position was also reasonable)

Universal Health Services v. United States, 579 U.S. 176 (decided June 16, 2016): parents of Medicaid-receiving teenager who died because of misprescribed drug given by uncertified doctor could pursue qui tam (“private attorney general”) action against health provider under False Claims Act (defrauding government by submitting false certifications for Medicaid reimbursement)

United States ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (decided June 16, 2023): Government can move to dismiss qui tam suit if suit does not advance governmental interest (suit under False Claims Act alleged hospital overcharging Medicare) (AG showed that costs of litigation would outweigh recoupment and possible disclosure of privileged health information)

Davis v. United States, 564 U.S. 229 (decided June 16, 2011): illustrates the “good faith” exception to the exclusionary rule: admitting evidence obtained during search that was legal at the time (police can search passenger compartment of arrestee’s car without further suspicion needed, New York v. Belton, 1981, but later held illegal, Arizona v. Gant, 2009)

Lora v. United States, 599 U.S. 453 (decided June 16, 2023): requirement in 18 U.S.C. §924(c) (using firearm in course of crime of violence or drug trafficking) that sentencing must be consecutive with any other crime does not apply to sentencing under later-added subjection (j) (firearm is used in murder or manslaughter); sentence can be concurrent

Virginia v. Hicks, 539 U.S. 113 (decided June 16, 2003): rejecting defendant non-resident’s argument that ordinance against loitering in public housing development was facially overbroad under First Amendment Freedom of Association

Allen v. St. Louis, I.M. & S.R. Co., 230 U.S. 553 (decided June 16, 1913): state commission’s rate for intrastate tariff was not confiscatory “taking” because rationally based on proportion of railroad’s interstate vs. intrastate business

United States v. Dickinson, 331 U.S. 745 (decided June 16, 1947): Tucker Act claim (compensation for a Fifth Amendment “taking”) for land lost due to flooding from government-built dam accrued not when water began to rise but when it stopped rising

Kent v. Dulles, 357 U.S. 116 (decided June 16, 1958): passport cannot be conditioned on denying Communist Party affiliation; right to travel is a “liberty” protected by Due Process clause of the the Fifth Amendment; Douglas writes for a 5 - 4 Court

NLRB v. Gissel Packing Co., 395 U.S. 575 (decided June 16, 1969): showing of signed, single-purpose authorization cards required employer to bargain with nascent union

June 17

Fulton v. City of Philadelphia, 593 U.S. --- (decided June 17, 2021): Free Exercise Clause prevented City from requiring placement agencies (including Catholic ones) to accept same sex couples for foster care program (for years I defended Catholic placement agencies and this is one of many places where the people “on the ground” disagree with Church teaching; at no point in this case does anyone feel free to point out the open secret, that the Church’s opposition to same-sex unions is by now practically a laughingstock to its own flock)

School District of Abington Township v. Schempp, 374 U.S. 203 (decided June 17, 1963): banned daily Bible readings in public school (“ten verses . . . without comment”) as violating First Amendment Establishment Clause even though parent could request child be excused (following up on Engel v. Vitale, 1962, which banned school-led prayer) (the verses were chosen by the homeroom teacher; I would have read from Song of Solomon)

Sherbert v. Verner, 374 U.S. 398 (decided June 17, 1963): denying unemployment benefits to Seventh Day Adventist because she refused to accept jobs where she had to work on Saturdays violated her free exercise First Amendment rights and no “compelling state interest” in forcing her to accept Saturday work (easy to see that; lots of jobs don’t require weekend work -- but what if she was a Third Day Adventist and couldn’t work on Tuesdays?)

Nestlé USA v. Doe, 593 U.S. --- (decided June 17, 2021): Alien Tort Statute (which allows foreigners to sue in United States courts) did not extend to allegation by plaintiffs from Mali that they were trafficked as child slaves to harvest cocoa; Court would not recognize fourth overseas tort (the three already recognized are violation of safe conduct, infringement of rights of ambassadors, and piracy)

Virginia Uranium v. Warren, 587 U.S. --- (decided June 17, 2019): state mining laws are not preempted by Atomic Energy Act (here, Virginia bans mining of uranium)

Int’l Brotherhood of Teamsters v. Vogt, 354 U.S. 284 (decided June 17, 1957): upholding ban on picketing of gravel pit because purpose was not to punish owner but to coerce workers to join union, citing Wisconsin statute prohibiting picketing if no labor dispute

Head v. New Mexico Board of Examiners in Optometry, 374 U.S. 424 (decided June 17, 1963): New Mexico statute prohibiting advertising of optometrist prices applied to enjoin ads in New Mexico newspaper and radio station placed by optometrist located in nearby Texas

Powell v. Texas, 392 U.S. 514 (decided June 17, 1968): disallowing “I can’t help it -- I’m an alcoholic” defense to charge of public intoxication is not Cruel and Unusual Punishment (distinguishing Robinson v. California, 1962, which held that being a drug addict by itself is not a crime, because that’s a status, not an act)

Cardwell v. Lewis, 417 U.S. 583 (decided June 17, 1974): no warrant needed for examining tire treads and taking scrapings of exterior paint of car impounded from public parking lot after owner was arrested for murder

California v. Texas, 591 U.S. --- (decided June 17, 2021): neither States nor citizens had standing to contest individual mandate of the Affordable Care Act; can’t show injury because mandate was revised to $0

June 18

Walker v. Sons of Confederate Veterans, 576 U.S. 200 (decided June 18, 2015): Texas can refuse request to put Confederate battle flag on license plates; it’s “government speech” and government can determine content

Allen Bradley Co. v. Local Union No. 3 Teamsters, 325 U.S. 797 (decided June 18, 1945): Sherman Act violated by union and employers working in concert to exclude competition (here, electrical workers and manufacturers excluding out of state manufacturers outside union’s geographical bargaining jurisdiction)

Department of Homeland Security v. Regents of the Univ. of California, 591 U.S. --- (decided June 18, 2020): cancels Trump Administration’s attempt to rescind DACA program (Obama-era program allowing those who entered United States illegally as children to apply for deferral of removal, work authorization and various other allowances); rescission was done without explanation (e.g., “what if anything to do about the hardship to DACA recipients”) in violation of Administrative Procedure Act

Yeager v. United States, 557 U.S. 110 (decided June 18, 2009): acquittal on some counts (wire fraud) precluded retrial on Double Jeopardy grounds even though it was logically inconsistent with the jury failing to reach a verdict on the other counts (insider trading and money laundering)

Gross v. FBL Financial Services, Inc., 557 U.S. 167 (decided June 18, 2009): plaintiff alleging age discrimination under ADEA must show but-for causation (i.e., age was the only reason for adverse employment event) instead of mixed-motive causation (e.g., also due to corporate restructuring); 5 - 4 decision

Barnes v. United States, 412 U.S. 837 (decided June 18, 1973): jury did not need to be instructed that defendant possessing stolen/forged Treasury checks must have known they were stolen from the mails (an element of the crime) (I learned a new term, or rather an old one -- passing along a forged document, like a check, is called “uttering”)

United States v. Helstoski, 442 U.S. 477 (decided June 18, 1979): under Free Speech and Debate clause evidence of what Congressman actually did in Congress in exchange for bribes cannot be introduced (so how can you prosecute someone like Helstoski, who took money from foreign nationals in exchange for introducing private bills allowing them to stay in the country? because of this decision he went free though the charges ended his career)

Ohio v. Clark, 576 U.S. 237 (decided June 18, 2015): Confrontation Clause did not require exclusion of preschooler's answer to teacher that his bruises were inflicted by defendant (statement was not “testimonial” because not for purpose of assembling evidence; teacher wanted to know if her duty to report abuse was triggered) (sounds to me like stretching to admit a statement that obviously has to be admitted)

Zobrest v. Catalina Foothills School District, 509 U.S. 1 (decided June 18, 1993): Individuals with Disabilities Education Act required school district to provide sign language interpreter for deaf child in Catholic school even though she would be at times relaying religious ideas

Torres v. Puerto Rico, 442 U.S. 465 (decided June 18, 1979): warrant needed to search luggage of persons traveling from mainland United States to Puerto Rico just like with intrastate travel

June 19

Mapp v. Ohio, 367 U.S. 643 (decided June 19, 1961): exclusionary rule for evidence obtained in violation of the Fourth Amendment applies to state prosecutions as well as federal (police improperly searching for evidence related to bombing found obscene materials instead; Ms. Mapp, once engaged to the boxer Archie Moore, had what might be called a “colorful” life)

New York v. United States, 505 U.S. 144 (decided June 19, 1992): New York’s Tenth Amendment challenge against the United States (not an original jurisdiction case, probably because two N.Y. counties were co-plaintiffs) dismissed as to federal statute allowing states to receive money to house out-of-state nuclear waste, and to refuse waste that does not meet guidelines, but Tenth Amendment does prohibit requirement that state take title to undisposed internal waste

McWilliams v. Dunn, 582 U.S. 183 (decided June 19, 2017): murder defendant needing mental health expert to evaluate defense (Ake v. Oklahoma) is entitled to someone seriously working on the case, not just psychologist volunteering occasional spare time and not present at sentencing hearing

Matal v. Tam, 582 U.S. 218 (decided June 19, 2017): denial of trademark as “disparaging” for name of Asian band which was an anti-Asian slur (“The Slants”) (the band’s purpose was to “reclaim” the term) was in violation of the First Amendment (I wonder -- if it was a racist white band dressing in “yellowface” which wanted to use the term in the original hateful sense, would the result have been the same?)

Santa Fe Independent School District v. Doe, 530 U.S. 290 (decided June 19, 2000): Establishment Clause prohibited student selected by student council from reciting prayer over public address system before each home football game (suit was brought by Catholic and Mormon parents)

Torcaso v. Watkins, 367 U.S. 488 (decided June 19, 1961): Maryland could not require notary oath to include belief in God

Ziglar v. Abbasi, 582 U.S. 120 (decided June 19, 2017): refuses to extend Bivens remedy to illegal aliens detained after 9/11 attacks and subjected to harsh and abusive conditions (remember this photo https://www.aljazeera.com/news/2023/3/20/reporters-notebook-taking-the-hood-off-20-years-later); confinement was “pursuant to a high-level executive policy created in the wake of a major terrorist attach on American soil” and such suits would need specific Congressional authorization

Flood v. Kuhn, 407 U.S. 258 (decided June 19, 1972): rejected Curt Flood’s antitrust challenge to the reserve clause even though other professional sports are not exempt from antitrust (I remember the New York Times editorial criticizing this decision; it was entitled “Misty-Eyed Justice” and pointed to the flowery paean to baseball in Blackmun’s opinion) (this suit in effect ended Flood’s career; he got the Colin Kaepernick treatment afterwards)

Packingham v. North Carolina, 582 U.S. 98 (decided June 19, 2017): striking down on First Amendment grounds a statute prohibiting convicted sex offenders from using social media which they know include minors as members

Indiana v. Edwards, 554 U.S. 164 (decided June 19, 2008): trial judge properly refused schizophrenic murder defendant’s request to be his own attorney (though he was found competent to testify) and appointed counsel (the judge in the Colin Ferguson trial should have done this)

June 20

Atkins v. Virginia, 536 U.S. 304 (decided June 20, 2002): executing intellectually disabled people (I think that’s the term for it now) is cruel and unusual punishment in violation of Eighth Amendment (overruling Penry v. Lynaugh, 1989, citing “evolving standards of decency” and the trend of states outlawing the death penalty in such cases) (defendant, convicted of armed robbery and murder, had an IQ of 59)

Smith v. Maryland, 442 U.S. 735 (decided June 20, 1979): attaching an offsite device to record calls from a house (a “pen register”) is not a “search” requiring a warrant because the person “voluntarily conveyed numerical information to the telephone company” (that’s a stretch, I think)

American Legion v. American Humanist Ass’n, 588 U.S. --- (decided June 20, 2019): large cross in now-busy intersection originally erected to honor World War I veterans could stay where it was without violating First Amendment Establishment Clause (this is the “Bladensburg Peace Cross”, see the wikipedia article)

McDonough v. Smith, 588 U.S. --- (decided June 20, 2019): Member of board of elections (McDonough) was charged with forging absentee ballots. He was acquitted and brought a §1983 suit against the prosecutor (Smith), who had allegedly fabricated evidence. Here the Court holds that the statute of limitations for the §1983 suit began to run not when the evidence was adduced at trial but when the verdict came in. This case arose in Troy, N.Y., and from the opinion one sees that Smith and McDonough had a “history” in local politics and Smith’s (alleged) fabrication of the case against McDonough was hardly subtle. But the detailed trial court order finally granting summary judgment to Smith reveals a different picture, 2022 WL 3279348 (Aug. 11, 2022).

American Electric Power Co. v. Connecticut, 564 U.S. 410 (decided June 20, 2011): common law nuisance suit against power plants by downwind states alleging greenhouse gas emission preempted by Clean Air Act; remanded to determine effect of preemption (don’t know what happened afterward)

Dodd v. United States, 545 U.S. 353 (decided June 20, 2005): statute of limitations to sue for newly recognized right begins to run from date of court ruling recognizing new right, not from when a court declares it has retroactive effect (here, defendant convicted of continuing criminal enterprise cited Richardson v. United States, 1999, which declared for first time that jury must be unanimous on each criminal act, but argued that limitations period began with a 2002 Circuit Court decision declaring Richardson to be retroactive; this argument was rejected -- seems like an unfair result)

Walter v. United States, 447 U.S. 649 (decided June 20, 1980): Boxes of films of gay male sex addressed to “Leggs” (pseudonym) instead got delivered to “L’Eggs Products” (makers of pantyhose) who called the police. When viewed these films revealed not only “bizarre” sex (would probably seem tame to us now) but also the name of the sender, who was arrested for obscenity. The Court holds that the FBI’s viewing of the films was a Fourth Amendment violation; they should have gotten a warrant. (What about the surprised mailroom clerk at L’Eggs? At what point was he required to stop looking into the contents of what a United States agency had delivered to him? Wasn’t the delivery presumptively valid? -- cf. the judge’s ruling in “Miracle on 34th Street”.)

National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (decided June 20, 1949): Congress could by statute modify the Constitution’s definition of diversity jurisdiction to include suits between D.C. residents and those of other states (instead of just between citizens of different states, which is how the Constitution reads; note that D.C. did not exist in 1787) (a complicated opinion, because the Court has to dance around a typically hardass ruling from John Marshall in 1804 holding that D.C. residents cannot bring diversity suits outside D.C. because it is not a “state”)

Utah v. Strieff, 579 U.S. 232 (decided June 20, 2016): improper search of drug dealer was overlooked, and all evidence found admitted, because it turned out there was a warrant for his arrest anyway, for a traffic violation

Gregory v. Ashcroft, 501 U.S. 452 (decided June 20, 1991): state judges can be automatically discharged at age 70 even though it’s age discrimination (federal age discrimination statute doesn’t apply) (did you know that the average age of active federal judges is 68?) (and that’s just the active judges -- the average age of the senior judges is 113)

June 21

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (decided June 21, 1971): federal officials can be sued for violation of Constitutional rights (just as state officials can be under 42 U.S.C. §1983) (such actions are now called “Bivens” actions) (here, FBI agents conducted improper drug search)

Texas v. Johnson, 491 U.S. 397 (decided June 21, 1989): struck down on First Amendment grounds laws in 48 states banning flag burning as a form of political protest (plaintiff had been prosecuted for flag burning outside the 1984 Republican convention)

Carson v. Makin, 596 U.S. --- (decided June 21, 2022): if state is giving assistance to private schools (in places where there are no public schools -- this is Maine, “the most rural State in the Union”) it can’t exclude sectarian schools

South Dakota v. Wayfair, Inc., 585 U.S. --- (decided June 21, 2018): states can collect sales taxes from suppliers who have no physical presence in the state (overruling National Bellas Hess v. Dept. of Revenue of Illinois, 1967, and Quill Corp. v. North Dakota, 1992)

United States v. Taylor, 596 U.S. --- (decided June 21, 2022): Hobbs Act crime (robbery with interstate component) is not a “crime of violence” as contemplated by the aggravated sentence statute, 18 U.S.C. §924(c) (use of firearm during “crime of violence”) (dissent by Thomas, who notes defendant was one drug dealer pulling a gun on another)

NCAA v. Alston, 594 U.S. --- (decided June 21, 2021): NCAA’s prohibition on student athletes getting paid violates the Sherman Act; subjecting NCAA to antitrust analysis (unlike major league baseball in Flood v. Kuhn)

Hirabayashi v. United States, 320 U.S. 81 (decided June 21, 1943): upholding curfew on Japanese-Americans living on the West Coast during World War II as use of Congress’s War Power, art. I, §8, cl. 11; Stone’s opinion says that Japanese self-segregate and many are dual citizens of Japan (in 1987 Hirabayashi got his conviction vacated, 828 F.2d 591)

Guinn v. United States, 238 U.S. 347 (decided June 21, 1915): invalidating grandfather clauses exempting white people from written exam which everyone else (i.e., black people) had to pass in order to be allowed to vote (one imagines the written exams disappeared pretty quickly after this decision)

Colgrove v. Battin, 413 U.S. 149 (decided June 21, 1973): civil jury of six jurors instead of twelve does not violate Seventh Amendment (fortunately -- I’m a civil trial lawyer and it takes long enough to pick six)

Florida v. Bostick, 501 U.S. 429 (decided June 21, 1991): police can’t search without a warrant even if person agrees to it after being told he had the right to refuse, if under circumstances person doesn’t feel free to refuse (here, police boarding bus searched passenger’s luggage, found drugs)

June 22

Jacobellis v. Ohio, 378 U.S. 184 (decided June 22, 1964): The obscenity case wherein Potter Stewart says, “I know it when I see it.” He is referring to “hard-core pornography”. But at issue here is a 1958 French film called “Les Amants” (“The Lovers”). (It’s on youtube at www. youtube.com/ watch?v=_WMb1V4bhA8. There’s no nudity or sex, though at 49:08 we see the lovers waking up in bed. Maybe the supposed obscenity is in the dialog -- I don’t speak French. The film seems mostly set in Algeria; see it just for the cinematography, which is beautiful.) Anyway, the Court (including Stewart) holds it to be not obscene.

R.A.V. v. City of St. Paul, 505 U.S. 377 (decided June 22, 1992): ordinance that prohibits display of a symbol that “arouses anger, alarm etc. on the basis of race, color, creed, religion or gender” is facially overbroad and in violation of First Amendment freedom of expression (defendant had burned a cross on the lawn of the black family across the street) (I sure hope they got him on some other charge) (he was the only neighbor not invited to their daughter’s graduation party and one can guess why)

Olmsted v. L.C., 527 U.S. 581 (decided June 22, 1999): Americans with Disabilities Act outlaws “segregation” of disabled people and is violated when “mentally retarded” and schizophrenic women are kept in institutions when they could be placed in community based programs

Arizona v. Navajo Nation, 599 U.S. 555 (decided June 22, 2023): Treaty allowing Navajo use of water on reservation did not create duty to protect it (by affirmatively assessing water needs and building pumps, wells, etc.); 5 - 4 decision and one sees from how Kavanaugh starts his opinion how he frames the Navajo (and Mexico) as losers in a fair fight and the United States as a magnanimous winner: “The United States won the Mexican-American War and acquired vast new territory from Mexico . . . For the next two decades, however, the United States and the Navajos periodically waged war against one another. In 1868, the United States and the Navajos agreed to a peace treaty. In exchange for the Navajos’ promise not to engage in further war, the United States established a large reservation for the Navajos in their original homeland.” No mention of one-sided invasion or genocide. Gorsuch, who grew up in Colorado and is sympathetic to Native Americans, writes dissent.

Carpenter v. United States, 585 U.S. --- (decided June 22, 2018): warrant needed for cell phone records over a period of six days which revealed defendant’s whereabouts (including being at place and time of robbery); without saying so, Court holds that 18 U.S.C. §2703(d), which allowed court to sign subpoena for telecommunications records “relevant and material to an ongoing criminal investigation”, violates Fourth Amendment requirement of warrant based on probable cause

City of Los Angeles v. Patel, 576 U.S. 409 (decided June 22, 2015): City code requiring hotel operators to keep records of all guests and provide them to police on demand (the purpose was to detect and punish sex trafficking of children and smuggling of migrants) violates Fourth Amendment

Bell v. Maryland, 378 U.S. 226 (decided June 22, 1964): twelve black students were convicted of refusing to leave whites-only restaurant but then the law changed (so as to outlaw segregated restaurants) -- but -- Maryland had a general “savings” statute that preserved liability after any change in law; Court remands back to Maryland’s highest court, the Court of Appeals of Maryland (which held that it was bound by the savings statute, 236 Md. 356, even though the prosecution joined with defendants in urging vacatur!)

Escobedo v. Illinois, 378 U.S. 478 (decided June 22, 1964): a pre-Miranda case excluding statements by an arrestee whose request to see his attorney was repeatedly refused and who was not advised of his right to remain silent

Jones v. Jones, 234 U.S. 615 (decided June 22, 1914): upholding Tennessee law that married slaves could pass their property to children but not other descendants, a rule which did not apply to other married couples (WTF!) (estate passed to widow of the decedent and not to his siblings as would have happened in this case with a white couple) (WTF!)

Michigan v. Summers, 452 U.S. 692 (decided June 22, 1981): police searching a house with a warrant have the right to detain anyone in the house in aid of the search (here, they found narcotics and arrested the guy they had ordered not to leave)

Rock v. Arkansas, 483 U.S. 44 (decided June 22, 1987): strikes down Arkansas rule prohibiting hypnotically refreshed testimony (here, murder defendant testifying that her gun in fact went off by mistake)

June 23

Kelo v. City of New London, 545 U.S. 469 (decided June 23, 2005): eminent domain power can be used to condemn homeowners’ property and sell to private nonprofit for office space, parking lots etc. as part of downtown revitalization (I assume the compensation paid to Ms. Kelo and her neighbors was the same as was billed to the New London Development Corporation?)

Mahanoy Area School District v. B.L., 594 U.S. --- (decided June 23, 2021): First Amendment prohibits school from punishing student for vulgar non-disruptive, off-campus speech (she posted on Snapchat “fuck school fuck softball fuck cheer fuck everything”) (sounds like late-period George Carlin)

South Dakota v. Dole, 483 U.S. 203 (decided June 23, 1987): Tenth Amendment not violated by withholding federal highway funds from states with an under-21 drinking age

United States v. Texas, 599 U.S. 670 (decided June 23, 2023): Texas and Louisiana do not have standing to contest new Biden Administration guidelines for arresting/removing noncitizens (Kavanaugh’s opinion: “The States essentially want the Federal Judiciary to order the Executive Branch to alter its arrest policy so as to make more arrests”)

Grutter v. Bollinger, 539 U.S. 306 (decided June 23, 2003): upholding use of race as a “plus factor” but not a “predominating factor” in law school admission policy

Samia v. United States, 599 U.S. 635 (decided June 23, 2023): Confrontation Clause (Sixth Amendment) not violated by jury hearing confession of co-defendant who refuses to testify, if redacted so as as not to implicate defendant (5 - 4 decision, with everybody apparently agreeing with the premise but not on these facts: the confession was that defendant did the shooting, with co-defendant only driving; redacted to put in words “the other person” for defendant’s name, and Kagan in dissent arguing that the jury could easily figure out who that was)

Nance v. Ward, 597 U.S. --- (decided June 23, 2022): can challenge lethal injection method of execution (painful in his case because of drug-abuse-compromised veins) even if less painful alternate method is not authorized by state law (he wanted a firing squad) (case is still being litigated in lower courts); 5 - 4 decision

Coinbase, Inc. v. Bielski, 599 U.S. 736 (decided June 23, 2023): 9 U.S.C. §16(a) (allowing interlocutory appeal of order denying motion to compel arbitration) divests the District Court of jurisdiction; can’t allow discovery, etc. to go forward while appeal is decided

New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. --- (decided June 23, 2022): striking down on Second Amendment and Fourteenth Amendment grounds state law requiring “proper cause” requirement for open carry hangun licenses; no “strict” or “intermediate” scrutiny analysis relevant, just showing that restriction would be in conflict with historical tradition (law at issue was from 1911 but Court discounts the 20th century)

Micou v. Nat’l Bank, 104 U.S. 530 (decided June 23, 1881): bankrupt father can pay off his creditor daughters ahead of the bank because not with intent to defraud the bank

P.R. v. Branstead, 483 U.S. 219 (decided June 23, 1987): federal courts can order state governors to extradite (one would think this was obvious in light of the Extradition Clause, art. 4, §2, cl. 2, but the Court had held otherwise in Kentucky v. Dennison, 1860)

Fay v. New York, 332 U.S. 261 (decided June 23, 1947): upholding New York’s use of special (“blue ribbon”) jury (education and morality qualifications) in criminal case involving construction contract extortion despite defendant’s argument that such a jury is more likely to convict (statute allowing special juries was repealed in 1965 -- too bad!)

Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (decided June 23, 1982): Massachusetts statute excluding public from trials of those accused of sexual offenses against minors violated Sixth Amendment right to public trial

June 24

“Fisher v. University of Texas at Austin I”, 570 U.S. 297 (decided June 24, 2013): all race based factors in college admissions are subject to “strict scrutiny”; remands the question of university’s admissions policy to be reconsidered by the Fifth Circuit (which had merely accepted race factors if made “in good faith”); Fifth Circuit approved the policy (in which race was “a factor of a factor of a factor” in multi-step evaluation) and the Court affirmed in “Fisher v. University of Texas at Austin II”, 2016

Cheney v. United States District Court, 542 U.S. 367 (decided June 24, 2004): Freedom of Information requests to Cheney’s Energy Task Force were overbroad and likely to conflict with official duties; remands to lower court to narrow requests (though Cheney argued that the requests should be denied in full) (suit was brought by Judicial Watch and the Sierra Club, an odd couple) (easy to see why oilman Cheney fought so hard against disclosure; leaks showed that even before 9/11 he was planning on toppling Saddam Hussein so as to open up the Iraqi oil market)

Iancu v. Brunetti, 588 U.S. --- (decided June 24, 2019): a crude but probably unavoidable offspring of Matal v. Tam, 2017, which had struck down on First Amendment grounds the USPTO Office’s refusal on statutory “disparagement” grounds to trademark “The Slants”, the name of an Asian-American band which wanted to “take back” that racial slur; here, the Court vacates the refusal to trademark the clothing line “FUCT” despite the “scandalous” name

Jenkins v. Georgia, 418 U.S. 153 (decided June 24, 1974): rules that the film “Carnal Knowledge” was not obscene (I saw it as a teenager -- Ann-Margret was hot!! -- also, when I was back to having a free hand to hold the popcorn, I realized it was a good movie)

Becerra v. Empire Health Foundation, 597 U.S. --- (decided June 24, 2022): approving HHS rule that percentage of Medicare-eligible patients (which goes into calculation of reimbursement rates for low-income-serving hospitals) includes those not actually receiving Medicare

Dobbs v. Jackson Women’s Health Organization, 597 U.S. --- (decided June 24, 2022): the Constitution does not provide a right to abortion and it’s not a substantive right “deeply rooted” in tradition; overruling the pro-choice extent of the holdings in Roe v. Wade, 1973 and Planned Parenthood v. Casey, 1990 and upholding Mississippi statute outlawing abortions after 15 weeks “except in a medical emergency (i.e., to save life of mother) or in the case of “severe fetal abnormality”

Hooper v. Bernadillo County Assessor, 472 U.S. 612 (decided June 24, 1985): Equal Protection violated by New Mexico statute limiting Vietnam War veteran property tax deduction to those who were New Mexico residents at the time

Pauley v. Bethenergy Mines, 501 U.S. 680 (decided June 24, 1991): permits two extra restrictions agency placed on applicants for federal Black Lung Disease benefits because they are obvious (benefits denied if no showing that condition arose out of working in mines, or if applicant does not in fact have pneumoconiosis)

Dutra Group v. Batterton, 588 U.S. --- (decided June 24, 2019): applying admiralty common law, holds that punitive damages not recoverable on claim of unseaworthiness (sailor injured by hatch blowing open)

Skilling v. United States, 561 U.S. 358 (decided June 24, 2010): vacates conviction against Enron executive for “honest services fraud” because statutory language was vague and would include some legal activities; Skilling’s conviction on other counts is not at issue so the case is sent back for resentencing (he also argued, unsuccessfully, that the jury was biased due to pretrial publicity)

June 25

Shelby County v. Holder, 570 U.S. 529 (decided June 25, 2013): preclearance provisions of the Voting Rights Act of 1965 can no longer be enforced until Congress comes up with new racial discrimination data (current data was 40 years old) (immediately after this decision came down Republican states formerly under preclearance began enacting voting restrictions)

Engel v. Vitale, 370 U.S. 421 (decided June 25, 1962): prohibits school-led prayer in public schools as violating First Amendment Establishment Clause

Chevron v. NRDC, Inc., 467 U.S. 837 (decided June 25, 1984): the origin of “Chevron deference”; courts must defer to an agency’s “permissible construction” of a statute if Congress has not directly spoken on the issue (here, whether pollutants from different parts of a steelmaking plant are from one “stationary source”)

City of Boerne v. Flores, 521 U.S. 507 (decided June 25, 1997): upholding San Antonio’s refusal on zoning grounds to approve church expansion and declaring Religious Freedom Restoration Act unconstitutional (as applied to the states) because its requirement of “strict scrutiny” of restrictions on religious practice was for the courts, not Congress, to decide; holding was superseded by the thus-far-unabrogated Religious Land Use and Institutionalized Persons Act which is based on Congress’s Spending Clause power

Riley v. California, 573 U.S. 373 (decided June 25, 2014): need warrant to search an arrested person’s cell phone; it’s not a permissible “search incident to arrest”

Georgia v. South Carolina, 497 U.S. 376 (decided June 25, 1990): An original jurisdiction case as to ownership of new islands in the Savannah River created by natural avulsion/accretion; the Court rules for South Carolina as to some matters, and for Georgia in others, based on 1787 treaty, acquiescence in use, and other factors. Interesting to see the Court get into minute fact-finding as to a few square yards of shoals and islets. I imagine the issue will have to be revisited as nature continues to sculpt the area.

Department of Homeland Security v. Thuraissigiam, 591 U.S. --- (decided June 25, 2020): upholds 1996 immigration act’s expedited procedure for removing aliens whose claim for asylum is deemed invalid (e.g., officer’s determination that there is no credible fear of persecution can’t be reviewed) (Sir Lankan crossing border who claimed he had been beaten in his home country); not prohibited by “suspension Clause”, art. I, §9, cl. 2 (Congress can’t suspend habeas except during rebellion or invasion)

Abbott v. Perez, 585 U.S. --- (decided June 25, 2018): legislative good faith is presumed when redistricting; upholds against Equal Protection attack Texas redistricting except for one district into which Latinos were packed; 5 - 4 decision (in dissent Sotomayor argues that the Court had no jurisdiction to reverse the findings of the three-judge District Court because no specific injunction involved, 28 U.S.C. §1253)

United States v. Alford, 274 U.S. 264 (decided June 25, 1927): upholding conviction for failing to extinguish fire created “near” federal land though not on it; the word “near” in the statute was not too indefinite, given the danger of forest fires spreading to public land

Robinson v. California, 370 U.S. 660 (decided June 25, 1962): striking down on “cruel and unusual punishment” grounds California statute penalizing “being addicted to the use of narcotics” even when one hasn’t used them or possessed them within the state

June 26

Obergefell v. Hodges, 576 U.S. 644 (decided June 26, 2015): bans on same-sex marriage violate Equal Protection (ruling on various cases involving adoption laws, issuing of marriage licenses, etc.)

Lawrence v. Texas, 539 U.S. 558 (decided June 26, 2003): Texas statute prohibiting same-sex genital contact struck down as violating Due Process clause (of course it was gay male couple getting arrested; laws against gay sex were hardly ever enforced against lesbians); distinguished Bowers v. Hardwick, 1986, with the excuse that only 13 states now prohibited gay sex

United States v. Windsor, 570 U.S. 744 (decided June 26, 2013): striking down Defense of Marriage Act which denied federal recognition of same sex marriages (at issue was whether a surviving same-sex spouse from New York where gay marriage was legal could claim federal tax exemption on estate)

District of Columbia v. Heller, 554 U.S. 570 (decided June 26, 2008): right to keep and bear arms is not tied to militia service (overruling case law relying on Miller v. U.S., 1939) and applies to self-defense in the home (at issue was a D.C. handgun ban) though right is “not unlimited” and bans on concealed carry and restrictions on sale are permissible

Hollingsworth v. Perry, 570 U.S. 693 (decided June 26, 2013): no “case or controversy” when opponents of gay marriage try to appeal the District Court’s Equal Protection striking down of the anti-gay-marrige Proposition 8 after state officials refused to further defend it (my neighbors, California residents at the time, were among the gay couples whose legal marriage became illegal with Prop 8 and then legal again with the District Court decision)

Trump v. Hawaii, 585 U.S. --- (decided June 26, 2018): deferring to executive branch discretion in upholding restrictions imposed by Trump on travel from North Korea, Syria, Iran, Chad, Libya, Yemen, and Somalia; only text of executive order is analyzed, President’s public declarations that it was based on race and religion disregarded

NLRB v. Canning, 573 U.S. 513 (decided June 26, 2014): President cannot use Recess Appointment Clause for appointments when Senate declares it is not in recess even though it actually is (plaintiff was contesting NLRB decision against his Pepsi distributorship on the basis that majority of commissioners were not validly appointed; Obama’s appointments were designed to achieve statutory NLRB quorum because the Senate had refused to act on nominees; Democrats had done the same with G.W. Bush nominees, although not with the intention of crippling the agency)

Kisor v. Wilkie, 588 U.S. --- (decided June 26, 2019): Chevron deference (Chevron v. Natural Resources Defense Council, 1984) is to an agency’s interpretation of statute; Auer deference (Auer v. Robbins, 1997) is to its interpretation of its own regulations. Here the Court under Auer defers to VA’s timing of retroactive PTSD benefits under its regulation allowing reopening a case when new records introduced (psychiatric report).

Tennessee Wine & Spirits Retailers Ass’n v. Thomas, 588 U.S. --- (decided June 26, 2019): Dormant Commerce Clause violated by Tennessee law requiring two years’ residency before applying for liquor license

Washington v. Glucksberg, 521 U.S. 702 (decided June 26, 1997): right to assisted suicide is not subject to Due Process clause (i.e., terminating one’s life is not “life, liberty or property” protected by the clause)

Spence v. Washington, 418 U.S. 405 (decided June 26, 1974): invalidating on First Amendment grounds statute forbidding affixing material to American flag (plaintiff had put a peace symbol on his flag and hung it outside his window upside down as a Vietnam War protest)

June 27

Whole Woman’s Health v. Hellerstedt, 579 U.S. 582 (decided June 27, 2016): strikes down Texas requirement that doctors performing abortions have privileges at local hospitals (a pretext for making it hard to obtain doctors to perform abortions) and requiring abortion clinics to meet standards of ambulatory surgery centers (irrelevant) as placing an “undue burden” on women inconsistent with Roe (probably no longer good law after Dobbs)

Kennedy v. Bremerton School District, 597 U.S. --- (decided June 27, 2022): violation of Free Exercise Clause to terminate football coach for kneeling after games “to offer a quiet prayer of thanks” at a time when students and players were free to go elsewhere (Sotomayor’s dissent calls this impermissible “official-led prayer” and attaches photo of what looks like forty players kneeling around the praying coach) (I wonder what Jesus would say about this, Matt 6:5-6)

Mallory v. Norfolk Southern Ry., 600 U.S. 122 (decided June 27, 2023): The Court continues to limit the reach of its surprise decision in Daimler AG v. Bauman, 2014, that suing a corporation that is merely “doing business” in a state violates Due Process. First it relied on an obscure venue provision to allow suit against an out of state railroad (BNSF Ry. Co. v. Tyrrell, 2017). Here it holds that registering to do business in a state implies consent to be sued in it. It’s risky not to register, of course, if you want to set up an office there. This reminds me of the Court’s gradual escape from its decision in Pennoyer v. Neff, 1878, that you can’t be sued unless you’re served with papers within state lines. (Suit was for exposure to carcinogens.)

Bates v. State Bar of Arizona, 433 U.S. 350 (decided June 27, 1977): strikes down on First Amendment grounds prohibition on attorney advertising (thus subjecting us to decades of angry-looking TV actors pretending to be lawyers -- grrr!! snarl!! woof!! woof!!)

Ruan v. United States, 597 U.S. --- (decided June 27, 2022): In his last majority opinion, Breyer holds that doctors convicted of running a narcotics racket could not be convicted under the Controlled Substances Act if they were objectively authorized to prescribe those substances, and it was up to the Government to rebut beyond a reasonable doubt that they were acting in an unauthorized manner (21 U.S.C. §841).

Counterman v. Colorado, 600 U.S. 66 (decided June 27, 2023): First Amendment does not protect what speaker knows are recklessly stated physical threats (stalker of female singer kept sending Facebook messages saying, e.g., “Staying in cyber life is going to kill you” and “You’re not being good for human relations, Die.”; she kept blocking him but he kept opening new accounts)

McCreary County, Kentucky v. ACLU, 545 U.S. 844 (decided June 27, 2005): Ten Commandments posted on walls of county courthouse violated Establishment Clause (county executive had stated in public that the Decalogue was the basis of the civil code) ( -- what? I thought statements of purpose by heads of government were irrelevant -- see Trump v. Hawaii, 2018)

Van Orden v. Perry, 545 U.S. 677 (decided June 27, 2005): Ten Commandments display outside state capitol did not violate Establishment Clause (you can look up the photo; it’s a small monument, easily passed by)

Printz v. United States, 521 U.S. 898 (decided June 27, 1997): Brady Law provision requiring local sheriffs to perform background checks violated the Tenth Amendment (no, not the Ten Commandments)

Dothard v. Rawlinson, 433 U.S. 321 (decided June 27, 1977): upholds regulation that women could not serve in “contact” positions in male prisons because sex offenders would be more likely to assault them (hiring only men was a “bona fide occupational qualification”, or “bfoq” -- did the Justices really say “b-fock” at conference?)

Republican Party v. White, 536 U.S. 765 (decided June 27, 2002): First Amendment violated by Minnesota law forbidding candidates for judicial office from giving views on issues

Rios v. United States, 364 U.S. 253 (decided June 27, 1960): ends the “silver platter” doctrine (wherein evidence illegally seized by state police could be used in federal prosecutions)

June 28

McDonald v. City of Chicago, (decided June 28, 2010): Second Amendment right identified as to federally administrated areas in District of Columbia v. Heller, 2008, also applied to states (i.e., incorporated by the Fourteenth Amendment)

National Federation of Independent Business v. Sebelius, 567 U.S. 519 (decided June 28, 2012): upheld the Affordable Care Act’s mandate for everyone to buy insurance as exercise of Congress’s taxing power (which can be used to provide for country’s “general welfare”)

United States v. Alvarez, 567 U.S. 709 (decided June 28, 2012): Stolen Valor Act (criminalizing false statements about one’s military decorations) struck down on First Amendment grounds (though shame still has an effect: remember Admiral Boorda who committed suicide after he was caught in a lie about just one medal on his “fruit salad”?)

United States ex rel. Brown v. Lane, 232 U.S. 598 (decided June 28, 1914): upheld Secretary of the Interior’s right to remove “for good cause” all the members of a tribal council elected by tribe members without notice or hearing or right of appeal (i.e., in reality it could be “for bad cause” or “for no cause at all”)

Lemon v. Kurtzman, 403 U.S. 602 (decided June 28, 1971): First Amendment not violated by statute allowing public funding of religious schools of secular subject textbooks and materials; established the “Lemon test”, where the statute has to 1) have a secular purpose 2) not have the effect of advancing or inhibiting religion and 3) not result in excessive entanglement with religion

North v. Russell, 427 U.S. 328 (decided June 28, 1976): Equal Protection not violated when lower criminal courts in small towns could have nonlawyer judges when in city courts judges had to be lawyers; first level of appeal in small towns was to courts with lawyer judges

Nixon v. Administrator of General Services, 433 U.S. 425 (decided June 28, 1977): Nixon could not deny request for records created while he was President (might have been a different result if he could argue self-incrimination, but he had been pardoned by Ford)

Regents of University of California v. Bakke, 438 U.S. 265 (decided June 28, 1978): race can be used as factor in admission to public university (here, the University of California, Davis Medical School) but quotas are impermissible

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (decided June 28, 1993): expert opinions in federal court (even as to state law claims) have to be based on reliable principles reliably applied; this holding was later encoded as amendment to Fed. R. Evid. 702

Mitchell v. Helms, 530 U.S. 793 (decided June 28, 2000): First Amendment not violated by government loans to religious schools for secular programs

Stenberg v. Carhart, 530 U.S. 914 (decided June 28, 2000): struck down Nebraska statute making “partial birth abortion” (properly called late term abortion) illegal even if mother’s life endangered; this was held inconsistent with Roe (but is the Nebraska statute really revived under Dobbs?)

Hamdi v. Rumsfeld, 542 U.S. 507 (decided June 28, 2004): U.S. citizen can be detained as an “enemy combatant” but has the right to habeas corpus with due process; effectively superseded by the Military Commissions Act of 2006 which stripped federal courts of jurisdiction

June 29

Planned Parenthood v. Casey, 505 U.S. 833 (decided June 29, 1992): invalidated on “undue burden” grounds Pennsylvania statute requiring spousal notice for abortion; left in place requirement of waiting period and parental consent for minors

Ashcroft v. ACLU, 535 U.S. 564 (decided June 29, 2004): enjoined on First Amendment grounds enforcement of the Child Online Protection Act which penalized providers that allowed minors to access “harmful content”; injunction ended up being permanent

Penneast Pipeline Co. v. New Jersey, 594 U.S. --- (decided June 29, 2021): Congress can delegate to private entity right to sue state under eminent domain (here, Natural Gas Act delegating to Penneast to obtain right-of-way for pipeline)

Groff v. DeJoy, 600 U.S. 447 (decided June 29, 2023): defense to Title VII (religious discrimination) claim, that employer would incur “undue hardship” in accommodating religious practice, requires showing of substantial cost; clarifying Trans World Airlines v. Hardison, 1977, which had been misunderstood as requiring only something more than de minimis (Evangelical sued because required to work on Sunday after USPS started delivering for Amazon; case remanded for fact findings)

Furman v. Georgia, 408 U.S. 238 (decided June 29, 1972): death penalty in three cases appealed was “cruel and unusual punishment” in violation of Eighth Amendment (short per curium 5 - 4 opinion, followed concurring and dissenting opinions) (decision in effect abolished the death penalty nationwide; in Gregg v. Georgia, 1976, Court allowed death penalty if arrived at by established factors presented to jury during sentencing trial)

Seila Law LLC v. Consumer Finance Protection Bureau, 591 U.S. --- (decided June 29, 2020): the makeup of the CFPB (a single Director with significant executive authority removable by President only “for cause”) violated separation of powers

Torres v. Texas Dept. of Public Safety, 597 U.S. --- (decided June 29, 2022): Texas state trooper enlisted, was sent to Iraq, was disabled due to exposure to toxic smoke, and came back to ask for re-employment in any way they could use him. They refused. The federal Uniformed Services Employment and Reemployment Rights Act allowed him to sue Texas in state court. The Court holds that this does not violate the Eleventh Amendment which applies only to suits in federal courts.

Arbitron Austria GmbH v. Hetronic Int’l, 600 U.S. 412 (decided June 29, 2023): Lanham Act (trademark infringement) does not extent to overseas infringement (remote controls for construction equipment)

Oklahoma v. Castro-Huerta, 597 U.S. --- (decided June 29, 2022): state courts had concurrent jurisdiction with tribal courts over crimes on reservation committed by non-Indians against Indians (father prosecuted for neglect of his stepdaughter)

Miller v. Johnson, 515 U.S. 900 (decided June 29, 1995): struck down attempt to create second black majority Congressional district due to grotesque boundaries (on the map it looked like a cat with a very long tongue jumping up to snare a spider)

Ricci v. DeStefano, 557 U.S. 557 (decided June 29, 2009): Title VII (equal opportunity in hiring) was violated when city hired black firefighters for management positions even though none passed the qualifying exam (whereas 19 white and 1 hispanic applicant did pass)

Bacchus Imports v. Dias, 468 U.S. 263 (decided June 29, 1984): struck down Hawaii’s tax exemption for in-state manufactured brandy as violating Dormant Commerce Clause

Students for Fair Admissions, Inc. v. President and Fellows of Harvard University, 600 U.S. 181 (decided June 29, 2023): after years of chipping away at it, the Court finally kills race-based affirmative action as violating Equal Protection; race cannot be used even as a “plus factor” in a multi-step process; 5 - 4 decision

June 30

Burwell v. Hobby Lobby Stores, 573 U.S. 682 (decided June 30, 2014): for-profit corporation is a “person” and if closely held can refuse under the Religious Freedom Restoration Act to follow federal regulation (Affordable Care Act’s requirement to provide insurance coverage for contraceptives)

New York Times v. United States, 403 U.S. 713 (decided June 30, 1971): First Amendment allowed printing of “The Pentagon Papers” (McNamara’s secret history of the Vietnam War) despite Espionage Act banning disclosure of national defense material “to the injury of the United States” (it came out in paperback shortly afterwards and I read it -- an eye opener!)

Biden v. Nebraska, 600 U.S. --- (decided June 30, 2023): Secretary of Education did not have power to cancel (instead of suspend) student debts due to Covid; Missouri had standing to sue because it created an independent loan program which would lose payments

NAACP v. Alabama, 357 U.S. 449 (decided June 30, 1958): Due Process violated by Alabama’s order for NAACP to produce membership list

Cox v. Larios, 542 U.S. 947 (decided June 30, 2004): one-person, one-vote rule can be violated even when differential between districts is less than 10% (here, Georgia’s plan as a whole favored urban, Democratic districts at the expense of rural, Republican)

Bowers v. Hardwick, 478 U.S. 186 (decided June 30, 1986): upheld Georgia law criminalizing sodomy (defined as putting genitals of one into mouth or anus of another) (of course, it was a gay man who was prosecuted, as if women never gave blow jobs) (overruled by Lawrence v. Kansas, 2003)

Biden v. Texas, 597 U.S. --- (decided June 30, 2022): In 2019 the lame-duck Republican Congress authorized the Trump administration to return to Mexico non-Mexicans who had tried illegally to enter through that country. Biden suspended this policy his first day in office. Here the Court holds that Biden had the authority to do that, given the discretionary language in the statute and the claimed foreign affairs implications.

West Virginia v. Environmental Protection Agency, 597 U.S. --- (decided June 30, 2022): In 2015 Obama’s EPA started requiring coal-fired plants to in essence phase out; the Court stayed the rule almost immediately and Trump repealed it. Biden tried to re-implement it. The Court holds that the rule exceeds the EPA’s authority under the Clean Air Act.

United States v. Ortiz, 422 U.S. 891 (decided June 30, 1975): can’t search cars at fixed border checkpoints unless “probable cause” (Ortiz’s car here turned out to have three illegal aliens in the trunk; evidence suppressed and conviction for transporting illegals vacated)

United States v. Brignoni-Ponce, 422 U.S. 873 (decided June 30, 1975): roving border patrol can’t stop car just because occupants “look Mexican” (this was in southern California, which at that point had been part of Mexico longer than it was part of the United States)

Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (decided June 30, 1994): First Amendment not violated by noise restriction and 30-foot buffer zone between abortion protesters and clinic, but 36-foot buffer on private property side and forbidding “images visible” from the clinic was overbroad