September
in Supreme Court History
September 1
Whole Woman’s Health v. Jackson, 141 S.Ct. 2949 (decided September 1, 2021): Court denies motion to stay enforcement of Texas law S.B.8 (allowing bounty hunting against women getting perfectly legal abortions); admits “serious questions” as to Constitutionality of the law but procedurally nobody is in the case who can be stayed; the State does not enforce this law. Roberts, Breyer, and Kagan dissent, arguing that the status quo ante should be preserved so that the question of whether Texas has the power to even pass such a law could be litigated; Breyer, Sotomayor and Kagan add that the law itself causes imminent harm to women who would be exercising a Constitutional right (this was before Dobbs removed that right); in a separate dissent these three call the Court’s order “stunning”: as to “a flagrantly unconstitutional law engineered to evade judicial scrutiny” the majority “buries its head in the sand”; in yet another dissent these three note that the Court is making its decision without full briefing after less than 72 hours.
Divans v. California, 439 U.S. 1367 (decided September 1, 1978): Rehnquist denies stay of murder trial; defendant argued Double Jeopardy, alleging that in earlier trial prosecution deliberately provoked mistrial, but produces no actual evidence of prosecutorial misconduct
General Council on Finance and Administration of United Methodist Church v. Superior Court of California, 439 U.S. 1355 (September 1, 1978): Rehnquist denies stay of California lawsuit against Illinois based church for fraud and securities violations arising out of operation of hospitals and retirement homes; California court’s analysis of long arm jurisdiction was not clearly wrong, this was not an intrareligious dispute so court involvement did not violate First Amendment; and delay in seeking this stay was “inexcusable”
September 2
Hawaii Housing Authority v. Midkiff, 463 U.S. 1323 (decided September 2, 1983): Rehnquist denies stay of Circuit Court order recalling an earlier decision as to whether Hawaii Land Reform Act violated Fifth Amendment “takings clause” and enjoining housing authority from pursuing any state administrative or judicial proceedings under the Act; possible Younger abstention but notes that Circuit Court will shortly revise its decision (the Court eventually held no Fifth Amendment violation because land would be taken for “public use”, 467 U.S. 229, 1984) (Hawaii, aware of ownership of Oahu being in so few hands, bought the land at issue from a trustee of the traditional monarchy; it consisted of many little leaseholds, which it sold to the tenants at market value; this attempt at land redistribution was thwarted when Japanese investors came in, though they bought at a high markup, so the tenants ended up o.k.)
September 3
Knickerbocker Printing Corp. v. United States, 75 S.Ct. 212 (decided September 3, 1954): in Eminent Domain case alleging inadequate compensation for demolishing a building to erect a VA hospital, Jackson reluctantly grants 20-day extension for filing cert; counsel’s excuse was that he was busy in the lower courts, but new rule precluding this excuse just went into effect; Jackson requests that the New York Law Journal and the Second Circuit post warnings to all attorneys for future reference (cert ended up being denied anyway, 348 U.S. 875)
Gruner v. Superior Court of California, 429 U.S. 1314 (decided September 3, 1976): reporters ordered jailed until they answered questions as to grand jury sources seek stay of commitment on the ground that there was no “due process hearing” to determine whether jailing them would achieve its purpose of forcing them to cooperate; Rehnquist notes that this argument amounts to “you can’t jail us if we can prove it won’t work!”; denies stay
September 4
Certain Named and Unnamed Non-Citizen Children and their Parents v. Texas, 448 U.S. 1327 (decided September 4, 1980): Powell restores District Court injunction against Texas law prohibiting state funds from being used to educate undocumented children; notes the open question of “strict scrutiny” as to plaintiffs’ Equal Protection argument; Texas in opposition points to increased expense of educating the children, and argues they they would suffer minimal harm because the law has already kept them out of school for five years anyway, but Powell says “the balance of harm weighs heavily on the side of the children” (the Court eventually ruled for them sub nom Plyler v. Doe, 457 U.S. 202, 1982)
September 5
Moore v. Brown, 448 U.S. 1335 (decided September 5, 1980): Rehnquist refuses to stay injunction requiring Mobile, Alabama school board to be elected by district (instead of traditional at-large); at-large system was not facially discriminatory because it was instituted in 1826, and District Court erroneously pointed to the effect of excluding blacks, as opposed to the intent, but the parties had agreed to hold district election for now and can return to at-large later if appeal succeeds (the Court ended up agreeing with Rehnquist via a companion case, 446 U.S. 55, 1980)
September 6
Shamburger v. Cockrell, 536 U.S. 986 (decided September 6, 2002): Denies stay of execution and also denies cert. Stevens and Ginsburg would grant the stay (probably because both had come to believe that the death penalty, as practiced, is always a violation of Due Process). Shamberger was executed by lethal injection five days later. A student at Texas A & M, he had shot another A & M student during an off-campus burglary. This was one of many burglaries he had committed. The gun was a 9mm pistol he had bought with a credit card he had already stolen from the victim (whom he had been stalking). He tied the victim up and gagged her with duct tape, and then shot her when he heard her roommate coming home. He confessed to the crime within hours after the attack and apologized to the family over and over, including on the day of execution. On appeal he had contested only the sentence (death as opposed to life imprisonment).
September 7
Uhler v. AFL-CIO, 105 S.Ct. 5 (decided September 7, 1984): Rehnquist says federal courts have no jurisdiction to stay California Supreme Court’s striking from the ballot a referendum requiring the legislature to apply to Congress for Constitutional Convention to add a “Balanced Budget Amendment”; California court had held that under Article V of the U.S. Constitution a Convention can be called only by the State Legislatures on their own initiative (and not as directed by referendum) and also that referendum was improper under the California Constitution (the Balanced Budget Amendment, pushed by Reagan-era Republicans — a new definition of “chutzpah” — fell two states short of the two-thirds required under Article V, and also failed to make it via the other Article V route, passage of two-thirds of each House of Congress)
September 8
Tuscarora Nation of Indians v. Power Authority of the State of New York, 79 S.Ct. 4 (decided September 8, 1958): Harlan partially affirms and partially reverses Second Circuit’s stay of condemnation of Tuscarora lands for power project; power authority says it can hold off on some parts of it without financial loss; notes that tribe’s separate action disputing the Power Authority’s license in the D.C. District Court would be heard by the D.C. Circuit, not the Second Circuit (the Power Authority eventually won, 362 U.S. 99, 1960)
September 9
McGee v. Alaska, 104 S.Ct. 16 (decided September 9, 1983): Rehnquist denies prisoner’s request to be released on bail even though the prosecuting authority (State of Alaska) has agreed to it; this was a federal law habeas application and the federal court decides for itself whether to grant release or bail; also he does not believe cert would be granted (McGee had already been released on bail until his state appeals were exhausted, then went back into prison to serve out his sentence; see his later motion to modify his sentence, 1985 WL 1077956 (Alaska Oct. 30, 1985))
September 10
Williams v. Rhodes, 89 S.Ct. 1 (decided September 10, 1968): Stewart, after conferring with other Justices, directs that George Wallace and his “American Independent Party” be put onto the Ohio ballot; the full Court then held that Ohio laws making it almost impossible for third party candidates to get onto the ballot violated Equal Protection, 393 U.S. 23 (Oct. 15, 1968)
Meredith v. Fair, 83 S.Ct. 10 (decided September 10, 1962): Black vacates numerous stays issued by the same judge and allows Meredith, whom the Circuit Court had ruled was wrongfully excluded because of his race, to enroll in the University of Mississippi (Meredith, a Republican from the days when it was still the Party of Lincoln, stayed in the party and served as advisor to people like Jesse Helms; I wonder how much they listened to him)
September 11
Smith v. United States, 423 U.S. 1303 (decided September 11, 1975): Douglas, in a wheelchair, stays order requiring federal grand jury records to be handed over to state prosecutor; the full Court later vacated the stay with Douglas dissenting, 423 U.S. 810 (Oct. 6, 1975) (this was the public appearance which showed the world that Douglas was never going to recover from the stroke he had suffered on the last day of 1974; he stared into the air blankly, declared that there would be a lunch break at 12:30 when it was already 1:00, and after oral argument was over, everyone waited uncomfortably while he sat in silence for ten minutes, before finally thanking the lawyers “for a spirited argument”) (he resisted resignation not just because he was stubborn and ornery but because Gerald Ford, who as a Congressman had led an attempt to impeach him, would pick his successor; he finally resigned on November 12) (the written opinion was unnecessary; though dated the same day as the hearing it was not handed out to the full Court until it met for the new Term on September 30, is unnecessarily detailed and seemed intended to prove he was still in full possession of his faculties; upon reconsideration the full Court vacated the stay)
September 12
Aaron v. Cooper, 358 U.S. 1 (decided September 12, 1958): in a per curiam decision issued quickly due to the school year beginning, the Court affirms the Circuit Court’s order desegregating Little Rock High School, overriding opposition of the Governor and State Legislature (the full opinion, unanimous, came down on Sept. 29, also 358 U.S. 1)
September 13
M.I.C. Ltd. v. Bedford Township, 463 U.S. 1341 (decided September 13, 1983): Brennan stays injunction against showing two allegedly obscene movies; theater operator, sued for nuisance, had moved at every level of the Michigan court system to get an expedited hearing and all motions had been denied; prior restraint exception to First Amendment requires “strict procedural safeguards . . . including immediate appellate review” and such was not provided here (the theater was called “West Point Auto Theatre”, a drive-in, but an appropriate name if you think of the term “autoeroticism” . . . )
September 14
McCarthy v. Briscoe, 429 U.S. 1316 (decided September 14, 1976): under 28 U.S.C. §1253, one can directly appeal to the Supreme Court from a three-judge District Court decision, but only if the decision was on Constitutional grounds; Powell denies motion to stay order because it was based on equitable doctrine of laches (this was Eugene McCarthy’s attempt to get on the ballot in Texas as a third party candidate; the Court later allowed him on, 429 U.S. 1317) (I voted for him that year, though I shouldn’t have)
Wisconsin Right to Life, Inc. v. Federal Election Comm’n, 542 U.S. 1305 (decided September 14, 2004): Rehnquist refuses to stay operation of the McCain-Feingold Act, which barred corporations from using general funds for “electioneering”, allegedly in violation of First Amendment Freedom of Speech; the Court had already held McCain-Feingold “facially Constitutional”, the three-judge District Court had already denied the injunction, and “All Writs Act” allowing the Court to issue any order in aid of its appellate jurisdiction is only to be used in “exigent” circumstances (the Court later changed its mind about McCain-Feingold and ruled it unconstitutional in Citizens United, 2010)
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Yeshiva University v. YU Pride Alliance, 143 S.Ct. 1 (decided September 14, 2022): Court denies stay sought by Jewish university of New York state court order requiring it to give equal treatment to LGBTQ student club because stay can first be sought in state court; vigorous dissent by Alito, joined by Thomas, Gorsuch and Barrett: “Does the First Amendment permit a State to force a Jewish school to instruct its students in accordance with an interpretation of Torah that the school, after careful study, has concluded is incorrect? The answer to that question is surely ‘no’.” (The lower court had also denied the university’s motion for summary judgment; this was affirmed on appeal, 211 A.D.3d 562, Dec. 15, 2022; as of this writing discovery is continuing in the trial court.)
September 15
Matter of Disbarment of Peter T. Roman, 487 U.S. 1261 (decided September 15, 1988): Stole client funds, forged signatures, lied to the court about funds being distributed, 526 So. 2d 60. From his website we see he’s been back in action, though Westlaw has no reported cases from him since the disbarment date. His bio talks more about his life as a globe-trotting martial arts master than it does about his legal experience, which I suppose is understandable. http://www.romanromanlaw.com/firm-overview/peter-t-roman
September 16
Socialist Labor Party v. Rhodes, 89 S.Ct. 3 (decided September 16, 1968): Stewart declines to order Ohio Secretary of State to place Socialist Labor Party candidates for federal office on ballot; Party has only 108 members and the relief it originally requested (space for write-ins) had already been granted (a much larger third party was involved in this litigation, and a month later the Court held that Ohio law making it impossible for any third party to get onto ballot violated Equal Protection, 393 U.S. 23)
September 17
Mikutaitis v. United States, 478 U.S. 1306 (decided September 17, 1986): Stevens grants stay of contempt order of witness who refused to testify in denaturalization proceeding against Nazi collaborator despite being given immunity; witness had also collaborated but had also aided Lithuanians trying to break away from the Soviet Union (our ally at the time), and argued that sealing of testimony would not protect him because he himself was in danger of being deported to the Soviet Union where he would be convicted of treason and executed; Stevens notes that whether sealing is adequate to protect witness is an open question that is subject to another pending cert application (though cert in both cases was denied the next month) (did Stevens really think there was no danger the Soviets would execute this guy if they didn’t have a transcript of his testimony? all they would need was Stevens’s own published discussion here of the facts) (unknown what happened to Mikutaitis)
September 18
Matter of Disbarment of Donald D. Nash, 473 U.S. 931 (decided September 18, 1985). He had been convicted of Class A sodomy. He later applied for reinstatement; the Oregon decision denying reinstatement has an extensive and graphic depiction of his treatment for pedophilia, 885 P.2d 1112 (1993). He had had sex with the 6-year-old daughter of a client. The psychiatrist at the reinstatement hearing noted that Mr. Nash was married to a woman 20 years his junior who was “unlikely to be at his maturity level”. The Dr. recommended that he return to practice but be prohibited from taking on clients who had little daughters. Good God! -- thankfully the court did not buy it. As of today he is still disbarred.
Matter of Disbarment of John Cody, 473 U.S. 930 (decided September 18, 1985): This man, John Donald Cody, has such an extensive history that he is on Wikipedia. After being caught stealing client funds, he disappeared, stole another’s identity, and incorporated a charity supposedly for Navy veterans (actually it was a charity for himself). He got onto the VA’s referral list and was photographed with George W. Bush, John Boehner, John McCain, Rudy Giuliani (no surprise there) and Karl Rove. They finally caught him in 2012 and he’s in prison for life.
September 19
United States v. United Liquors Corp., 77 S.Ct. 208 (decided September 19, 1956): Reed denies stay of antitrust judgment prohibiting defendants from “entering into or adhering to any fair trade contract which purports to fix or control the resale price of any alcoholic beverage in the Memphis trading area for five years”, despite argument that they would lose business to other liquor sellers who were not bound by this restriction
September 20
Barthuli v. Board of Trustees of Jefferson Elementary School District, 434 U.S. 1337 (decided September 20, 1977): Rehnquist says he cannot “stay” pending cert a state court judgment which dismissed case brought by school official who claimed that he was entitled to hearing before being fired; a stay would be “a mere declaration in the air” (cert was denied, 434 U.S. 1040, 1978) (he had a point -- how can you “stay” an order of dismissal?)
Mecom v. United States, 434 U.S. 1340 (September 20, 1977): Powell denies reduction of $750,000 bail pending appeal of conviction for marijuana dealing; though District Court gave no reason for why bail was set so high, the Government’s opposition on the motion before Powell pointed out that defendant had been part of a large scale operation, his wife, a participant, had fled to Mexico to avoid prosecution, and defendant had paid $100,000 to murder a suspected informant
Hutchinson v. People, 86 S.Ct. 5 (decided September 20, 1965): Harlan refuses to stay remand of criminal case after removal pending appeal to the Circuit Court of the remand order; defendant did not convincingly show that he could not receive fair trial in state court as to federal allegations (defendants were accused of trespassing while protesting discriminatory practices of power authority; civil rights cases are removable under 28 U.S.C. §1443 and, in exception to general rule, remand orders in such cases are appealable)
September 21
McLeod v. General Electric Co., 87 S.Ct. 5 (decided September 21, 1966): Harlan reinstates NLRB decision forcing General Electric to negotiate with electrical workers’ union even though some negotiators also were members of other unions GE was bargaining with (a business cannot be forced to bargain with more than one union at a time)
September 22
Pfeifer v. E.I. duPont de NEmours and Co., 530 U.S. 1300 (decided September 22, 2000): denies cert to review Nebraska Supreme Court decision holding that farmer’s breach of warranty claims against manufacturer for herbicide (sales person said it controlled weeds in corn but instead it killed the corn too) were preempted by federal statute limiting warranties to labels, 258 Neb. 756
Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 521 U.S. 1146 (September 22, 1997): denies cert to review Circuit Court holding that Seuss copyright was infringed by parody using Seuss style language to describe O.J. Simpson trial (“The Cat NOT in the Hat”), 109 F.3d 1394
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Miller v. Hamm, 143 S.Ct. 50 (decided September 22, 2022): Court vacates District Court’s stay of execution (implicitly disagreeing with its evaluation that defendant would succeed on the merits) (Sotomayor, Kagan, Barrett and Jackson would maintain the stay); Miller had survived two attempts at execution by lethal injection, the executioners being unable to find a vein, and argued Equal Protection and Due Process violations; right after the Court cleared the way for execution, the State of Alabama decided to switch to death by nitrogen hypoxia but it took a long time to develop the protocol; as of this writing, Sept. 22, 2023, it has told the trial court the protocol was set up and asked for an execution date)
September 23
Katzenbach v. McClung, 85 S.Ct. 6 (decided September 23, 1964): Black lifts injunction against enforcement of Civil Rights Act against restaurant that denied service to blacks (not Black; presumably they’d let him in because he was white) (not White) (as we know, the full Court later ruled that the restaurant was in violation, 379 U.S. 294)
Winters v. United States, 89 S.Ct. 34 (decided September 23, 1968): Harlan refuses to stay Marine’s transfer to Vietnam pending determination of his claim that his callup from reserve to active duty was illegal (the District Court had held that government was not bound by 1965 reserve contract and cert was eventually denied, 393 U.S. 896)
September 24
Twentieth Century Airlines v. Ryan, 74 S.Ct. 8 (decided September 24, 1953): Reed refuses to stay administrative proceedings against “irregular” air carriers who had been ordered to stop mergers and refinancings because they were done without Civil Aeronautics Board approval; no irreparable injury shown and administrative proceedings afforded them adequate due process
Philip Morris USA, Inc. v. Scott, 561 U.S. 1301 (decided September 24, 2010): Scalia stays enforcement of class action judgment against tobacco companies for giving false information about addictive properties of nicotine (judgment also required companies to fund smoking cessation programs); defendants have possible due process defense in that Louisiana court held that each plaintiff did not have to prove individualized fraud for damages (as opposed to access to antismoking programs); cert was ultimately denied, 564 U.S. 1037 (2011)
September 25
Tennant v. Jefferson County Comm’n, 567 U.S. 758 (decided September 25, 2012): Full Court, reversing District Court, approves of West Virginia Legislature’s reapportionment of its three Congressional seats, one of eight competing plans. This short decision goes through how the Court decides whether a redistricting comports with “one person, one vote”: population differential (not dispositive; one of the rejected plans had a differential of only one person between the smallest and largest districts); whether incumbents would be forced into the same district; whether counties or cities would remain whole, etc. The approved plan had a differential of only 0.79% between the smallest and largest districts, which the Court admitted in these days of computerized analysis might be a “large” deviation, but o.k. here.
September 26
Matter of Disbarment of Mosely, 512 U.S. 1284 (decided September 26, 1994): Municipal judge convicted of extorting kickbacks from contractors, 810 F.2d 93 (though unlike the one time a judge shook me down, none of those victims was a broken, disabled man threatened with prison). He became a minister, and his web page mentions his criminal history. https://lawsoflifecourttv.com/fred-m-mosely-testimony/ Though he seems to stress being rejected by his peers (awww . . . ) and mentions the convictions as if it was something bad that just seemed to happen to him.
Matter of Disbarment of Cole, 512 U.S. 1285 (decided September 26, 1994): Convicted of large-scale bank fraud and money laundering, “issuance of over 82 fraudulent loans and 49 fraudulent cashier’s checks”. 989 F.2d 495.
Matter of Disbarment of Corces, 512 U.S. 1284 (decided September 26, 1994): Attorney with bright future lived the high life and borrowed client funds to pay personal bills. (As one of my law professors said, “That’s always how it starts.”) At first he paid it back. And then . . . https://www.tampabay.com/archive/1992/05/17/the-long-slide-of-charles-corces/
Matter of Disbarment of Karsch, 512 U.S. 1284 (decided September 26, 1994) and Matter of Disbarment of Meyer, 512 U.S. 1284 (decided September 26, 1994): These attorneys were disbarred for their non-attorney acts, in this case as CEO and Treasurer of a supermarket chain which defrauded manufactures via fraudulent coupons (give them credit for creativity), 197 A.D.2d 262, 200 A.D.2d 17
September 27
Taniguchi v. Kan Pacific Saipan, Ltd., 564 U.S. 1066 (decided September 27, 2011): cert granted due to Circuit Court split of authority; the Court subsequently held that “compensation to interpreters” recoupable by prevailing party as part of “costs” (28 U.S.C. §1920) did not include expense of translating documents, 566 U.S. 560, 2012 (Mariana Islands resort had won summary judgment against Japanese baseball player who fell through wooden deck; resort wanted to tax the expense of translating Japanese medical records into English, which totaled — $5517.20?? they went all the way up to the Supreme Court for this? were the attorneys working for minimum wage?) (the reports all say Taniguchi was a baseball player but the accident happened in 2006, and he last played in 2001) (the oral argument, which was recorded, was memorably acted out in PuppyJusticeAnimated, https://www.youtube.com/watch?v=zNU6Y13gqZQ)
September 28
Collins v. Virginia, 138 S.Ct. 53 (decided September 28, 2017): granted cert on a case involving the automobile exception to the warrant requirement; the full Court later reversed the Virginia Supreme Court, 138 S.Ct. 1663 (why was this not in United States Reports?) (2018), holding that motorcycle involved in speeding incident which could be seen through the top of a partially enclosed driveway was in the “curtilage” of house and therefore warrant needed
September 29
Smith v. Richey, 89 S.Ct. 54 (decided September 29, 1968): Another soldier challenging callup to active duty as violating the Ready Reserve Act, for which Douglas notes there are “substantial and unresolved questions”. Smith was going to be shipped out the next day “to the Asian theater” and Douglas “hesitates to act” but since the Ninth Circuit had denied a stay, Douglas grants it, keeping the soldier at Hamilton Air Force Base. (No information on what happened to this case, but the Ready Reserve Act, a/k/a the Military Selective Service Act, 50 U.S.C. §451 et seq., amended in 1967 to narrow the conscientious objector exception, has always passed Constitutional muster.)
Chamber of Commerce of U.S. v. Legal Aid Society of Alamada County, 423 U.S. 1309 (decided September 29, 1975): The last decision by the stroke-felled Douglas, who embarrassed himself at oral argument of an application two weeks previously by being “out of it” but apparently was on the ball for this one. Here he refuses to stay a protective order, noting that disclosure of demographic information on federal contractors collected by the EEOC is prohibited by statute and cannot be disclosed by another agency that ended up with the information.
Cooper v. Aaron, 358 U.S. 1 (decided September 29, 1958): full Court refuses to stay Little Rock desegregation order; Governor and state legislature are bound by decisions of District Court
September 30
Lux v. Rodrigues, 561 U.S. 1306 (decided September 30, 2010): Roberts denies injunction requiring Virginia election officials to count Congressional candidate’s signatures; signatures had been held invalid because of statute requiring witness to signatures to be from same Congressional District as signers; statute would likely withstand scrutiny even in light of recent case law striking down various petition restrictions (Roberts was proven wrong; the 4th Circuit remanded to the District Court with instructions to evaluate State Interest implications, and the statute was struck down on First Amendment grounds, 842 F. Supp. 2d 895 (E.D. Va. 2012))