November
in Supreme Court History
November 1
Graham v. Fulton County Special Purpose Grand Jury, 143 S.Ct. 397 (decided November 1, 2022): According to Georgia Secretary of State Brad Raffensperger, Sen. Lindsey Graham leaned on him after the 2020 election to discard some absentee ballots. Does the Speech and Debate Clause (art. I, §6, cl. 1) prohibit questioning of Graham about this in front of a Georgia grand jury investigating Trump’s interference with the election results? The Court’s short order affirms that the Clause applies to Graham’s “informal investigation” (arguably a legislative activity), but does not mention the wider context, which was that Graham could still be questioned about his contacts with the Trump campaign. Graham testified as to those on November 22, 2022, his suit was dismissed as moot by the Eleventh Circuit on December 20, and Trump and eighteen others were indicted on August 14, 2023.
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Manila Investment Co. v. Park Trammell, 239 U.S. 31 (decided November 1, 1915): suit alleging breach of trust as to property was mere contract dispute and not Equal Protection violation and so no federal court jurisdiction
Anderson v. Harless, 459 U.S. 4 (decided November 1, 1982): another case holding that you can’t seek habeas in federal court until the issue (here, a faulty jury instruction on how to find malice) has been argued in state court and the appellate process there has been exhausted
Norfolk Redevelopment and Housing Authority v. Chesapeake and Potomac Telephone Co. of Virginia, 464 U.S. 30 (decided November 1, 1983): telephone company forced to relocate lines due to street realignment wasn’t “displaced person” entitled to benefits under federal relocation assistance statute; statute did not displace common law rule that public utilities forced to relocate from right-of-way must do so at own expense (we all hated the telephone company, but couldn’t a Fifth Amendment “takings” argument have been made?)
November 2
United States v. Kirby Lumber Co., 284 U.S. 1 (decided November 2, 1931): in one of his last opinions, Holmes holds that the gain realized by a company which bought up its own bonds at a lower price than issued is taxable
United States v. Portale, 235 U.S. 27 (decided November 2, 1914): another opinion by Holmes, concerning conviction under a statute that I wish someone would explain to me (currently codified at 18 U.S. §2424): if you harbor an alien woman brought here for the purpose of prostitution, you must file a statement to that effect with Immigration (subsection (b) provides immunity, but can anyone trust that? does anyone ever comply with this statute?)
McKesson v. Doe, 141 S.Ct. 48 (decided November 2, 2020): Circuit Court should have certified question to the Louisiana Supreme Court (on whether Louisiana law holds organizer liable for actions of protester in seriously injuring policeman with thrown rock) instead of trying to decide it themselves
November 3
Elk v. Wilkins, 112 U.S. 94 (decided November 3, 1884): Native American born on reservation is not a citizen and therefore cannot vote even though he moved off reservation, renounced his tribal affiliation, and claimed birthright citizenship under Fourteenth Amendment (holding was abrogated by Indian Citizenship Act of 1924)
Mitchell v. Esparza, 540 U.S. 12 (decided November 3, 2003): Ohio court held that aggravated murder defendant’s omission from indictment as a “principal offender” was harmless error; the Court holds that this was not “contrary to clearly established federal law” and therefore no right to seek habeas
Rose v. Arkansas State Police, 479 U.S. 1 (decided November 3, 1986): strikes down on Supremacy Clause grounds Arkansas workers’ compensation statute allowing benefits payable to policeman’s widow under federal Public Safety Officers’ Death Benefits Act to be subtracted from workers’ compensation benefits due her
November 4
District of Columbia v. Eslin, 183 U.S. 62 (decided November 4, 1901): judgment by contractor against the District of Columbia’s Board of Public Works is uncollectable because filed in court which no longer had jurisdiction, even though judgment and notice of appeal were filed before statute eliminating jurisdiction was enacted (repeal statute had explicitly vacated all existing proceedings) (sounds like a Due Process violation to me)
Stanton v. Sims, 571 U.S. 3 (decided November 4, 2013): police officer enjoyed qualified immunity from §1983 suit brought by woman whose front gate was kicked down while he was in warrantless “hot pursuit” of suspect (this kind of thing actually happened to a friend of mine, in the early 1990’s; my research skills, rudimentary at that point, led me to believe that her case fell within a “de minimus” exception, even though to her that ruined front door was pretty expensive)
INS v. Orlando Ventura, 537 U.S. 12 (decided November 4, 2002): Circuit Court can’t decide fact issues de novo (here, as to Government’s “changed conditions” argument that Guatemala was now safer and political asylum no longer merited); should have remanded back to Board of Immigration Appeals
November 5
Buchanan v. Warley, 245 U.S. 60 (decided November 5, 1917): striking down on Equal Protection grounds ordinance prohibiting sale to Black people of house on majority-White block (the Court was holding in favor of a White man who wanted to enforce the contract of sale to a Black man) (distinguished Plessy on the grounds that in that case Black people had to ride in separate car, but were not denied access to train)
Burt v. Titlow, 571 U.S. 12 (decided November 5, 2013): federal court can’t reexamine state court finding of fact so long as it’s “reasonable” (here, as to claim of ineffective assistance of counsel causing missed chance at plea bargain)
Lefemine v. Wideman, 568 U.S. 1 (decided November 5, 2012): plaintiff who won no monetary damages but obtained permanent injunction in §1983 case was “prevailing party” and therefore entitled to fees under §1988 (injunction was against the police and allowed plaintiff to exercise his First Amendment rights by displaying photos of aborted fetuses in front of clinic)
November 6
Weeth v. New England Mortgage Security Co., 106 U.S. 605 (decided November 6, 1882): the Supreme Court used to have jurisdiction when a “certificate of division” was presented to it, where there was a disagreement between the District Judge and the Circuit Justice (from the Supreme Court); here (in a dispute over loan repayment) a certificate was rejected because it called upon the Court to get into fact-finding
Mount Lemmon Fire District v. Guido, 139 S.Ct. 22 (decided November 6, 2018): 20-employee minimum required for liability under Age Discrimination Act of 1967 does not apply to state entities (here, a local fire department)
Miles v. Apex Marine Corp., 498 U.S. 19 (decided November 6, 1990): Jones Act allows wrongful death claim (extending the holding of Moragne v. States Marine Lines, 1970, from longshoremen to seamen) (I remember Moragne from first-semester Torts class; at the time I thought: “wrongful death”? is there such a thing as rightful death?)
November 7
Cleveland v. United States, 531 U.S. 12 (decided November 7, 2000): video poker licenses were not “property” so as to be predicate for prosecution under mail fraud statute (defendants had obtained licenses via applications with fraudulently concealed facts)
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Powell v. Alabama, 287 U.S. 45 (decided November 7, 1932): in one of the earliest Incorporation decisions, Court holds that Sixth Amendment right to counsel was incorporated by Fourteenth Amendment; black defendants accused of raping white women on train should have been given court-appointed lawyer and been informed of their right to such (this was the “Scottsboro Boys” case)
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The Max Morris v. Curry, 137 U.S. 1 (decided November 7, 1890): person injured on vessel can recover in admiralty suit even if part of the fault was his
November 8
Greene v. Fisher, 565 U.S. 34 (decided November 8, 2011): “clearly established federal law” required for habeas does not include law established by Court in decision announced after state appeals on facts are exhausted
United States v. Olson, 546 U.S. 43 (decided November 8, 2005): Federal Tort Claims Act allows only for torts for which state law holds private parties (not governmental entities) liable, and court must determine if state law provides private law analogies for the duties of governmental entities (here, mine inspectors)
U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (decided November 8, 1994): federal courts don’t automatically vacate judgments simply because a settlement has been reached; appeal dismissed as moot, so judgment stands (one imagines that the paying party didn’t want to have a Satisfaction of Judgment filed because it might be seen as admitting liability)
November 9
Harris v. Forklift Systems, Inc., 510 U.S. 17 (decided November 9, 1993): Title VII claimant (“abusive work environment”) need not show that her psychological well-being was “seriously affected”; totality of circumstances but still must be “objectively” abusive (ALJ found supervisor made frequent gender insults, sexual innuendos, “You’re a woman, what do you know”, “We need a man as the rental manager”, “you’re a dumb ass woman”, suggested “we go to the Holiday Inn”, asked her to get coins from his front pocket, etc., etc.)
Wickard v. Fillburn, 317 U.S. 111 (decided November 9, 1942): Congress can regulate amount of wheat farmer grows for his own consumption because it takes away from what he might sell in interstate commerce (my Con Law professor said this case was “the final nail in the coffin” of the Restricted Commerce Clause era, but he was saying this in 1991; the coffin has since popped open)
Ex Parte U.S. Joins, 191 U.S. 93 (decided November 9, 1903): the Court has no power to annul decisions of “Citizenship Court” set up by Congress to (against the wishes of Oklahoma tribes) break up their communal land and sell to individuals; the court had already ceased to exist, having performed its only legislated function
November 10
Ex Parte Crouch, 112 U.S. 178 (decided November 10, 1884): federal courts cannot via habeas vacate state court convictions except on jurisdictional grounds (gradually overruled, most specifically by Brown v. Allen, 1953)
Baltimore & O.R. Co. v. Kepner, 314 U.S. 44 (decided November 10, 1941): state court cannot interfere with resident injured railroad employee’s statutorily permitted federal venue of FELA action even if inconvenient for railroad (suit brought in New York courthouse 700 miles away even though accident happened 20 miles from employee’s house in Ohio) (winning side was represented by one Morrison R. Waite, grandson of a Chief Justice) (court notes expense of bringing 25 local witnesses to New York; looks to me like plaintiff wanted to use the prospect of litigation costs to force settlement in a meritless case)
Pfaff v. Wells Electronics, Inc., 525 U.S. 55 (decided November 10, 1998): patent invalid because inventor waited too long after entering into sale “order” before applying for it (it has to be within one year of sale, 35 U.S.C. §102(b))
November 11
Boylan v. Hot Springs Ry. Co., 132 U.S. 146 (decided November 11, 1889): passenger properly thrown off train when refusing to pay extra on return trip even though he had paid round trip fare, where ticket (which he hadn’t read) required it be stamped at departing station and he didn’t get it stamped (the language of the ticket, quoted in a footnote, is so extensive that it had to have been “fine print”)
Connecticut v. Menillo, 423 U.S. 9 (decided November 11, 1975): upholding Connecticut statute criminalizing abortion “by any person” if that person is not a physician (“Roe v. Wade did not go so far”)
Chandler & Price Co. v. Brandtjen & Kluge, 296 U.S. 53 (decided November 11, 1935): denying motion to intervene in patent suit made by holder of patent for another device (sheet transferring mechanism in printing press) whose business would be hurt if patent at issue (improved automatic feed and delivery for press) was voided
November 12
Winter v. Natural Resources Defense Council, 555 U.S. 7 (decided November 12, 2008): vacating stay of antisubmarine SONAR use by Navy off California shore; strong national security interest and no showing that it actually harms marine mammals (“not a close question”)
Barnhart v. Thomas, 540 U.S. 20 (decided November 12, 2003): laid-off elevator operator was properly denied Social Security Disability; though suffering from heart disease, lumbar strain, etc., was still able to physically do old job; did not meet definition of “disability” and also Chevron deference to finding of SSA appeals board
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Northern Indiana Public Service Co. v. Porter Co. Chapter of Izaak Walton League of America, 423 U.S. 12 (decided November 12, 1975): reinstating Atomic Energy Commission approval of nuclear power plant because AEC's construction of regulation requiring distance from population centers was reasonable; notable as the last opinion by Douglas, on the day he retired after his record 36+ years of service (his concurrence notes that the successor agency subsequently revised the regulation to fit facts of the case; “a certain danger lurks in the ability of an agency to mold its regulations to conform to its instant needs”)
Kelly v. Robinson, 479 U.S. 36 (decided November 12, 1986): court-ordered restitution obligation (monthly payments to victim after larceny conviction) is not dischargeable in bankruptcy
November 13
United States v. Bormes, 568 U.S. 6 (decided November 13, 2021): dismissing lawyers’ class action alleging Fair Credit Reporting Act violation of privacy (federal filing fee receipts display last four digits and expiration date of lawyer’s credit card) because sovereign immunity not waived
Ayers v. Belmontes, 549 U.S. 7 (decided November 13, 2006): no error in judge not specifically instructing jury to consider future mitigating circumstances in sentencing (here, that defendant would lead a constructive life if incarcerated as opposed to executed), where evidence and argument was presented by defense counsel; death sentence reinstated (the defendant, who during a burglary unexpectedly encountered the 19-year-old victim and struck her head 15 to 20 times with a dumbbell, went up to the Court again on an ineffective assistance of counsel argument in 2009; eventually died on death row of natural causes in 2017) (so did those extra years end up being “constructive”?)
In re Amendments to Rules 1 and 10, 108 U.S. 1 (decided November 13, 1882): Waite amends Court rules as to costs for a copy of the record; he gifts us with a history of the clerk’s practices under the old rule (this boring disquisition suited Waite’s literary talents; as Frankfurter pointed out, “the stuff of the artist was not in him”)
November 14
Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30 (decided November 14, 1994): Eleventh Amendment did not bar injured railroad workers’ suit in federal court against Port Authority, an entity wholly owned by New York and New Jersey and created under the Interstate Compact Clause (art. I, §10, clause 3); judgment against Port Authority would not be collectible against either state
Key v. Doyle, 434 U.S. 59 (decided November 14, 1977): District of Columbia statute restricting religious bequests was not a “statute of the United States” and therefore no direct appeal to the Court from decision of the District of Columbia Court of Appeals striking down the statute on First Amendment grounds (this is the highest local D.C. court, created in 1970, not the federal-system D.C. Circuit Court with which D.C. appeals had been entangled); appeal can only be heard via certiorari, which is denied (the Court was parsing the language of the former version of 28 U.S.C. §1257, which required the Court to hear highest-court decisions striking down “statutes of the United States”; in 1988 the statute was changed to permit appeals only by cert, all but eliminating the Court’s mandatory appellate jurisdiction)
Ward v. Village of Monroeville, Ohio, 409 U.S. 57 (decided November 14, 1972): Due Process violated when trial as to a traffic offense was held before mayor who was also responsible for village finances and therefore had an interest in imposing fines
November 15
The Harrisburg, 119 U.S. 199 (decided November 15, 1886): can’t sue in admiralty for wrongful death because Congress has not provided for it (overruled by Moragne v. States Marine Lines, 1970)
Moody v. Daggett, 429 U.S. 78 (decided November 15, 1976): parolee who committed a crime while on parole does not have normal entitlement to immediate parole revocation hearing even though in custody after warrant issued
Albertson v. Subversive Activities Control Board, 382 U.S. 70 (decided November 15, 1965): requiring members of the Communist Party to register as such violates self-incrimination clause (by doing so they could automatically be prosecuted under the Smith Act) (previously the Court had held that requiring Party leaders to submit a list of members was not unconstitutional, Communist Party v. Subversive Activities Control Board, 1961) (the Board was abolished in 1972)
November 16
Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149 (decided November 16, 1908): defendant’s assertion of defenses based on federal law does not create federal court jurisdiction (I remember this one from law school; a couple guaranteed lifetime passage on a railroad in consideration of settling a personal injury case sued 35 years later when their tickets were no longer being honored)
Hardy v. Harbin, 154 U.S. 598 (decided November 16, 1874): Was John Hardy the same as Thomas (or Tomás) Hardy (an assumed name) to whom the Mexican government had granted land in 1836 as a reward for his war service? At issue was a claim to the land (which by then was in Texas) by John’s grandchildren. The opinion sifts through “3000 folios of testimony” as to sightings of John or Thomas at various times and places, physical descriptions, statements as to owning land, whether a signature was validly recognized, etc. This could be made into a TV series (like “The Fugitive”), or at least a board game. The frontier encounters and the piecing together of a mystery remind me of the Hillmon case. Anyway the Court examines the facts found by the trial court and affirms its finding that it was not the same man.
Bell v. First National Bank of Chicago, 115 U.S. 373 (decided November 16, 1885): by custom and practice three days’ grace is allowed for payment of “foreign bill of exchange” (i.e., can’t sue on it until days of grace are over)
November 17
Dennis v. Sparks, 449 U.S. 24 (decided November 17, 1980): private parties who allegedly corruptly conspired with judge to deny oil lease in violation of Due Process can still be sued under §1983 even though co-conspirator judge enjoys judicial immunity (echoes of the Watergate convictions, with Nixon as an unindicted co-conspirator)
Crouch v. United States, 266 U.S. 180 (decided November 17, 1924): Navy war widow (husband had been on The Cyclops, which mysteriously disappeared in March 1918) can’t sue for restoration of statutory insurance benefits (they had been stopped due to her “misconduct”, not described in the opinion); United States had not waived sovereign immunity
Toucey v. New York Life Ins. Co., 314 U.S. 118 (decided November 17, 1941): Plaintiff’s assignee attempted to litigate a claim in state court that plaintiff had already lost on in federal court. Court dissolves Circuit Court stay, holding that it is up to the state court to decide the res judicata issue without federal court interference. In dissent Justice Reed argues that the Anti-Injunction Act, 28 U.S.C. §2283 (restricting federal courts from staying state court proceedings) was not meant to leave federal courts powerless to protect their own judgments. In 1948 the Act was amended in accordance with his position.
Morrissey v. Perry, 137 U.S. 157 (decided November 17, 1890): statute prohibiting enlistment under the age of 18 did not void legal obligation of soldier who enlisted at age 17 (lying about his age), deserted, then reappeared at age 21 and demanded his freedom; statute was for the benefit of parents and guardians in aid of custody and control of their children
November 18
Ohio v. Robinette, 519 U.S. 33 (decided November 18, 1996): search of car was truly consensual even though police officer didn’t first tell driver he was “free to go” (police asked to search, driver said yes, and drugs were found)
Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34 (decided November 18, 1985): habeas statute does not allow federal judge to order marshals to bring state prisoners to the courthouse as witnesses; subpoena can only be served on those having custody (suit was over state prison guard brutality)
Recznik v. City of Lorain, 393 U.S. 166 (decided November 18, 1968): apartment above cigar store was not “public establishment” and therefore warrant needed for entry (police had seen parked cars outside and people entering; they entered through back door and saw a dice game in progress and made arrests for gambling)
November 19
Goudy v. Meath, 203 U.S. 146 (decided November 19, 1906): Congress may exempt land held by Native Americans from taxation before they sell it but didn’t do so in this case; Congress had declared in 1887 that plaintiff’s tribe were now citizens so he had to pay taxes from that point forward
United States v. Cambridge Loan & Building Co., 278 U.S. 55 (decided November 19, 1928): government was estopped from collecting back taxes even though taxpayer “building and loan association” was making too much money on the outside to qualify for exemption designed for nonprofits
Francisco v. Gathright, 419 U.S. 59 (decided November 19, 1974): habeas petitioner didn’t have to resubmit to state court his claim that the state statute he had been arrested under was unconstitutional; his state appeals had been exhausted but the state supreme court then issued a decision in another case agreeing that the statute was unconstitutional (this was Sharp v. Commonwealth, 1972, where the Virginia Supreme Court held that intent to distribute drugs cannot be inferred solely from the quantity possessed) (I think it can very well be inferred, unless the possessor was the all-consuming Hunter S. Thompson)
November 20
Osborne v. County of Adams, 106 U.S. 181 (decided November 20, 1882): a steam grist mill is not an “internal improvement” under state statute authorizing county to issue bonds for construction; statute deals only with railroads and related structures (not clear why there’s federal court jurisdiction here; the lower court seemed to say there wasn’t, yet decided the merits anyway, 7 F. 441)
O’Neil v. Northern Colorado Irrigation Co., 242 U.S. 20 (decided November 20, 1916): farmer objecting to a water utility plugging up his ditch in accordance with water priority decree in another district (where only district residents could be heard) was barred by four-year statute of limitations from contesting the decree, even though they didn’t come by to plug it up until 30 years later (seems unfair to me)
Gottschalk v. Benson, 409 U.S. 63 (decided November 20, 1972): a program to be used on a computer was not a patentable process because it was merely an abstract “principle”; the program here changed numbers from “binary coded” to “pure binary”, for example changing 53 from 5 then 3 (0101 0011) to 53 all in one bunch (110101)
November 21
Bank of Marin v. England, 385 U.S. 99 (decided November 21, 1966): bank which had no notice of bankruptcy proceeding not required to turn over to trustee amounts of checks drawn by bankrupt pre-petition but honored post-petition (everything had been squared away with the payee so at issue was only the imposition of costs)
New York, New Haven & Hartford R.R. Co. v. Henagan, 364 U.S. 441 (decided November 21, 1960): Woman stepped in front of train in attempt to commit suicide; train came to sudden stop and waitress in dining car was injured by the jolt (soft tissue injuries plus “paranoid psychosis”). The Court here affirms judgment for the railroad. (P.S. Train did not stop in time.)
State of Washington v. Kuykendall, 275 U.S. 207 (decided November 21, 1927): towing of logs across Puget Sound met statutory definition of “common carrier” even if not registered as such and therefore can only charge scheduled rates even though rate for this job was set by contract between it and private party
November 22
Brasfield v. United States, 272 U.S. 448 (decided November 22, 1926): judge can’t ask a jury foreman during deliberations where the vote currently stood (even though he doesn’t ask which side is winning); conviction for violation of Volstead Act (transporting alcohol) reversed
Mississippi v. Tennessee, 142 S.Ct. 31 (decided November 22, 2021): in original jurisdiction case, upholds Special Master’s finding; though Tennessee owns all the water under it, it is equitably liable to Mississippi for pumping that depletes downstream state aquifers (supplying water for Memphis reduced groundwater pressure in northern Mississippi)
November 23
Arnold Tours v. Camp, 400 U.S. 45 (decided November 23, 1970): travel agencies had standing to contest Comptroller of Currency’s authority to issue rule allowing national banks to get into the travel agency business (travel agencies won, 472 F.2d 427)
Bohlen v. Arthurs, 115 U.S. 482 (decided November 23, 1885): tenant could not cut timber and sell it without consent of co-tenant; co-tenant was allowed to seize timber (diversity action)
Beck v. Ohio, 379 U.S. 89 (decided November 23, 1964): police could not arrest man with a history of gambling convictions without a more specific showing of probable cause or warrant (upon searching his person they found “clearing house strips” indicating he was running a numbers racket, possession of which was illegal under Ohio statute)
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November 24
Hotel Employees Local 255 v. Leedom, 358 U.S. 99 (decided November 24, 1958): Court here ends the NLRB’s longstanding hands-off policy as to hotels keeping unions out
Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church, 344 U.S. 94 (decided November 24, 1952): striking down on Free Exercise grounds New York statute requiring Russian Orthodox churches to have separate in-state corporate status (as opposed to being administratively subject to Patriarch of Moscow); the opinion contains a history of the disruption caused by the Bolshevik Revolution and Patriarch’s eventual accommodation with the Soviets (the American branch had the right to disassociate when that happened, but it couldn’t be written into law)
Hawkins v. United States, 358 U.S. 74 (decided November 24, 1958): conviction under Mann Act (transporting woman across state boundaries for prostitution) overturned; issue was over the purpose of the trip, and error to allow defendant’s wife to testify against him (violated common law rule as to spousal testimony, and wife was also a prostitute and had conflict of interest) (Stewart, concurring, calls the rule against spousal testimony “a sentimental relic”)
November 25
Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.Ct. 63 (decided November 25, 2020): in a 5 – 4 vote, Court grants stay on Free Exercise grounds of Covid-19 executive order limiting church attendance to ten persons in red zones or 25 persons in orange zones; less restrictive alternatives available
Yates v. United States, 355 U.S. 66 (decided November 25, 1957): refusal to give names of Communist Party members results in only one conviction for contempt even though question was asked and refusal to answer ten times (in the more important decision in this case, the Court held that the First Amendment restricts Smith Act convictions to advocacy of specific overthrow actions, not overthrow as a general principle, 354 U.S. 298)
Saxbe v. Bustos, 419 U.S. 65 (decided November 25, 1974): ruling against Farmworkers Union and holding that INS regulations permit aliens to cross border for daily work with only a green card and without need of certification from the Secretary of Labor
November 26
Keyes v. United States, 109 U.S. 336 (decided November 26, 1883): lieutenant’s suit for back pay dismissed because he was validly court-martialed (one of the judges, his C.O., was a main witness, but he didn’t object at that time) and because President’s appointment of his successor terminated his commission (a much smaller Army in those days!)
Nitro-Lift Technologies v. Howard, 568 U.S. 17 (decided November 26, 2012): objection to non-compete agreements involved federal law (Federal Arbitration Act) but was matter for arbitrator in first instance (Oklahoma Supreme Court had purported to rest its decision on Oklahoma law as to enforceability of such agreements)
Palmer v. BRG of Georgia, 498 U.S. 46 (decided November 26, 1990): Do bar review companies form a cartel in violation of the Sherman Act? The Court here says: Yes! At my law school they seemed to be in competition but that might be illusory. (Full disclosure: I was a BarBRI rep, but it was because I was sleeping with the previous year’s rep.) Here, former law student sued after companies agreed that one of them would not compete in that state (Georgia). The Court relied on United States v. Socony-Vacuum Oil Co., 1940, where oil companies agreed to temporary buys to keep oil prices up (that case was more famous for Douglas’s footnote 59 which said price fixing was per se illegal regardless of means to do so or existence of overt act).
November 27
California Reduction Co. v. Sanitary Reduction Works of San Francisco, 199 U.S. 306 (decided November 27, 1905): San Francisco validly under the California Constitution gave corporation exclusive right to dispose of the city’s garbage; dismisses Fourteenth Amendment argument made by citizens and competing corporation (the opinion has long lists of types of garbage, offal, excrement, animal remains; don’t read it while eating)
Correctional Services Corp. v. Malesko, 534 U.S. 61 (decided November 27, 2001): right to sue public officers for Constitutional violations (Bivens) does not extend to right to sue private corporations providing federal governmental functions (here, privately run prison that did not provide disability accommodations for federal prisoner) (this case greatly curtailed “state actor” liability and was a huge boon to the “private prison” industry; 5 – 4 decision)
Perrin v. United States, 444 U.S. 37 (decided November 27, 1979): federal statute prohibiting use of interstate commerce to commit “bribery” included bribery of private individuals (here, paying for stolen geological information useful for oil drilling)
November 28
United States v. P.G. Evans, 195 U.S. 361 (decided November 28, 1904): owner of land-anchored feature (lighthouse) can sue in admiralty for damage done by vessel
City of Indianapolis v. Edmond, 531 U.S. 32 (decided November 28, 2000): drug checkpoint (stopping every car, asking for license and registration, conducting “plain view” search and having dog sniff around it) was “unreasonable search” under Fourth Amendment
United States v. Sperry Corp., 493 U.S. 52 (decided November 28, 1989): fee charged by tribunal set up to adjudicate claims as to property in Iran was a permissible user fee and not a “taking” (this was the Iran-United States Claims Tribunal, set up after the Carter Administration on its last day in office got Iran to agree to return assets seized during hostage crisis)
November 29
Commissioner v. Kowalski, 434 U.S. 77 (decided November 29, 1977): cash meal allowances to New Jersey police officers are taxable income
Lincoln Property Co. v. Roche, 546 U.S. 81 (decided November 29, 2005): defendant can remove to federal court without having to exclude possibility of non-diverse interested parties (tenants sued out-of-state landlord for mold injuries; did not find any in-state partners of defendants during jurisdictional discovery but Court notes they didn’t try very hard) (I was recently involved in a removed case where the judge made us track down every partner of one defendant and lo and behold, one of the silent partners was in-state; remanded!)
Texas v. Lesage, 528 U.S. 18 (decided November 29, 1999): white applicant to state university can’t argue that affirmative action was Equal Protection violation when he would have been denied entrance even under race-neutral regime
November 30
Porter v. McCollum, 558 U.S. 30 (decided November 30, 2009): ineffective assistance of counsel where mental health effects of combat experience were not presented at competency and mitigation hearings
California v. Mitchell Bros. Santa Ana Theater, 454 U.S. 90 (decided November 30, 1981): “beyond reasonable doubt” can be the state law standard of proof in a civil enforcement action as to obscenity (here, a suit by city attorney as to showing pornographic films) but Due Process does not require it
Hoeper v. Tax Commission of Wisconsin, 284 U.S. 206 (decided November 30, 1931): struck down statute combining wife’s income with husband’s for determining his income tax; reviewing historical change in legal status of women, Court notes that she is independent agent with sole control over her income