DALLAS v. STANGLIN

Stanglin was released on April 3, so was part of a list of cases on a website that provides day-by-day summaries. The case involves a law that "authorizes the licensing of 'Class E' dancehalls, restricting admission thereto to persons between the ages of 14 and 18 and limiting their hours of operation."*

I have written various posts on this blog dealing with privacy-related cases, particularly involving birth control and abortion. This case came up a couple of times, including a review of a book on dance. 

The challenger ended his oral argument in this case on a privacy note, though freedom of association was a key issue. The lower court cited precedent to show that "social" association is included there.** 

The right to freely associate is not limited to "political" assemblies, but includes those that "pertain to the social, legal, and economic benefit of our citizens."

The Supreme Court overturned. It cited a recent case limiting "intimate" association to small groups (the dance halls had hundreds of people). The case, the majority by Chief Justice Rehnquist argued, also did not expand "expressive" association to social dancing. 

Rehnquist applied "social" narrowly to mean "nothing more than that the right of expressive association extends to groups organized to engage in speech that does not pertain directly to politics." That's dubious. 

Justice Stevens (with Blackmun) agreed that the law was legitimate while noting in an opinion concurring in judgment that:

the opportunity to make friends and enjoy the company of other people — in a dance hall or elsewhere — is an aspect of liberty protected by the Fourteenth Amendment.

He did not provide an analysis for this conclusion, but it is correct. We have a right to marry, for instance, and that entails meeting people in various contexts on the road to marriage. 

(I'll toss in that even non-expressive athletic dancing is important to personal wellness to a degree that it is not a trivial aspect of personal freedom.)

The opinion is partially concerned with limits. Anything -- we saw this with the conversion therapy case -- might involve expression. 

We express ourselves in some fashion by basically anything we do. Dance halls are also not the first thing you think about regarding the "right to association." 

Nonetheless, people go to dance halls quite literally to associate. They meet people and interact. They express themselves. Dancing, including "social" dancing, is a means of expression. The importance of dances in Jane Austin novels comes to mind. 

A social gathering at a restaurant is also not what many people would associate (ha) with the First Amendment. But it has some of that character. We meet and talk. We associate. We share ideas.  

I found it troubling years ago, and still do, that Brennan and Marshall just went along with the open-ended language of the majority opinion. The concurrence provided a way to underline that there were constitutional interests involved. 

They probably thought the case was not worth worrying about. Easy cases, if this is one, however, leave open the possibility of troublingly open-ended legal conclusions. The ability, if sometimes taken too far, to regulate minors was a way to uphold the law.

Likewise, the regulation of business establishments, including those with a large number of people, might warrant freer rein. The law did not deny teenagers the ability to dance with adults. It regulated a certain type of for-profit establishment of a certain size. 

Stevens argues that this law, if anything, furthered the constitutional rights that the class of teenagers had. No need to say they have none (other than some general right against arbitrary treatment) in this context. 

A question by Rehnquist suggests a red flag. Could the government (when this could be criminalized) ban two men dancing to advance anti-same sex sodomy laws? Limits of gay bars, including bars with large clientele, had First Amendment and right to privacy implications. Social activity = rights.

Social dancing should not be treated on the same level of constitutional scrutiny as the regulation of eyewear and other "rational basis" cases. The case is a troubling overreach and unnecessarily so. 

Justice Brennan was careful not to even let cases involving alleged child pornography (e.g., Osbourne v. Ohio) be used to limit the right of privacy and other constitutional rights. His silence here was dubious. 

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* The enterprise appears to have arisen from another daily SCOTUS history project, which provides single moments involving various subjects. It always not case specific. Some key cases are not chosen.

I comment there now. A recent comment on a school prayer case received more than usual attention. I stopped replying since I think I said enough. 

** Griswold v. Connecticut cited free speech and freedom of association cases to help show how privacy is necessary to protect constitutional rights. Multiple cases also protect, if to a somewhat more limited degree, the constitutional rights of minors. 

Sex of Comments

People commenting online often either have masculine or neutral-sounding handles. I generally assume, especially if they are assholes, that these people are men. But there are enough shitty people who are not men that I probably assume too much.

Sigh

I enjoy commenting online. I have done so for decades now. But some people repeatedly cannot handle discussing things reasonably. They often, sarcastically, "translate" what you have to say in ignorant ways using a biased translator. They make snide remarks based on ignorance. They don't want to or have the ability to honestly engage, no matter how much you work at it. It is so tiresome. 

SCOTUS Watch

Order List

The Supreme Court on Monday agreed to weigh in on a procedural question arising from a pregnancy discrimination case – specifically, whether a defendant can raise an affirmative defense (that is, a legal excuse or justification) later in the proceedings when it did not raise that defense in the answer to the plaintiff’s complaint.

After a brief order list, Sotomayor (with Jackson) spends some time explaining why the justices should have taken a criminal justice case. Finding troubling criminal justice cases that suggest the arbitrary nature of the criminal justice system is her thing.  

(The opening link provides more details) 

Opinions 

Happy Trans Visibility Day, which once was allegedly an anti-Easter plot or something, since it coincidentally overlapped that year. By chance, the justices decided the conversion therapy case.

Justice Gorsuch having the opinion (which, like multiple other opinions he had in cultural war cases, was procedurally dubious) was a bad sign. Worse, only Jackson dissented. It was a good dissent. 

(Jackson used a Calvinball ruling -- see Breyer's angry dissent -- to her benefit. Okay. But realistically, that is how it is going to be. Selective application.) 

The conservatives upheld anti-trans care policies, even though such policies clearly have ideological motivations. This time, when trans people are protected, the regulation is suddenly thought control.

The law involves the regulation of people with a state license to practice medicine and only covers minors. So, it is not about the conversion therapy of adults or therapy by unlicensed people, including clergy. 

Under this logic, any medical treatment delivered through words rather than instruments could now carry First Amendment protection—a framework that could shield a doctor who encourages a patient to commit suicide, a dietician who tells an anorexic patient to eat less, or a therapist who deliberately steers a vulnerable client away from life-saving treatment. It could also extend well beyond medicine: a financial advisor who talks an elderly client into a bad investment is exercising speech-based professional conduct, as is a lawyer who gives harmful legal advice.

Not good. Kagan (with Sotomayor) concurred in full, citing an alleged limitation. But, as Jackson noted, the limitation in context is fictional. If they concurred strategically, Gorsuch's language is far from restrained.

The opinion says strict scrutiny is required. Some misleading coverage aside, the Court did not strike down the law. Colorado has a higher test to meet. 

But that is usually an uphill battle. Gorsuch's rhetoric, as SCOTUSBlog flags, is also not reassuring:

But the Supreme Court also strongly hinted that the ban would fail that test. In his 23-page opinion, Gorsuch stressed that in cases like Chiles’, Colorado’s ban “censors speech based on viewpoint.” Because the First Amendment “reflects … a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth,” Gorsuch continued, “any law that suppresses speech based on viewpoint represents an ‘egregious’ assault on both of those commitments.”

The possible Robert Kennedy Jr.-ing of medical care is not ideal. I say that even if the opinion leaves open a way to uphold this law (strict scrutiny met) or to craft another policy that will protect children. 

Kagan, in the past, disliked "Lochner-ing" or the weaponizing of the First Amendment. Blah. 

Upcoming

The conference was on Thursday, given the Easter weekend. Monday will be an Order List. They then take a two-week break until April 17th. 

A media advisory regarding an oral argument that will likely have more demand for sitting flags the change at the top at Homeland Security. 

Birthright Citizenship Trivia

Trump showed up for the birthright citizenship oral argument (left after the solicitor general was done), which would be the first time a sitting president did so. Notably, he picked this case to do so.

Talk about this being an "attempt to intimidate the justices" seems a tad overblown. Separation of powers? Eh. Members of Congress show up. 

Nixon and John Quincy Adams argued cases. Lincoln, too (a more forgotten detail). Not while in office, of course. Taft became Chief Justice. Ditto. 

John Marshall served as Secretary of State briefly after becoming Chief Justice. The Constitution does not -- unlike for members of Congress -- clearly ban that sort of thing. Justices also served in diplomatic roles. Robert Jackson was a prosecutor at Nuremberg.

Two Books, Same Author, One Better

I mostly enjoyed this book that combines the anti-war activism of Coretta Scott King with the ultimately tragic story of a Medal of Honor winner (PTSD and a tragic death). Quick reading, smooth narratives.

The King story did sort of peter out. Her anti-war work was important. The author's discussion about it did become repetitive at some point. And then, the war is over, and we basically skip to her dying. 

I found the subject matter of this book interesting.

The publication of Roots and the airing of the miniseries in the mid-1970s were major cultural moments. Alex Haley was also important for his work on the "Autobiography" of Malcolm X. 

Good subject matter.

The book, which is shorter by over one hundred pages than the most recent one (putting aside many photographs), however, is harder to read. I also was left wanting, including regarding a short chapter summarizing the book as compared to a more detailed (up to a point) chapter of the miniseries.

The book got too into the weeds of Alex Haley blathering about how great the book would be. The book was okay, but the subject matter warrants a better presentation. 

I never read either book or watched the miniseries. 

ETA: I found Strikingly Familiar (plagiarism) interesting and written in a down-to-earth fashion.

The book there is an uplifting book about a gay couple who adopted a child. The book does not explain why it was published nearly 15 years after the end of the events covered. The baby was found in 2000, so he must be in his mid-20s by now. 

Another version of the story was released in 2020. I suppose that makes some sense since it would be shortly after Kevin is an adult. That book is not referenced in this volume. I find it all a bit weird. 

SCOTUS Watch: Sotomayor Dissents a Lot Edition

Order List

There was a long order list today. This implied an unsigned opinion and/or dissent. We had both. 

A brief, unsigned opinion (per curiam) held that a lower court incorrectly didn't provide qualified immunity in an excessive force case. The justices argued that precedent did not settle the question. The liberals disagreed.

Qualified immunity is a major concern. Congress can and should address the situation. Too often, even that ability to try is removed. 

This also should be disfavored from a historical point of view. Things have changed over time, so I don't just rely on that. But some judges allegedly rely on that a lot. Allowing juries to decide would also be democratic. Now, judges too often close things off.

Sotomayor had all three dissents. She also argued for the liberals that the justices should have taken a case involving DNA evidence in a capital case. 

DNA evidence isn't magic. The government fears people will demand DNA evidence, here perhaps tainted in some fashion, and too much will be made out of it. But DNA evidence can also be powerful. A possibly tainted execution is also a tiebreaker. 

A third case involving denial of cert of a case involving alleged retaliation against an online journalist was a solo effort. That case had some support from conservatives below (Judge Willett was cited). Sotomayor provides a sympathetic reading. She also flags an apparent circuit split, making it a helpful "vehicle" for SCOTUS review.  

I'm not an expert. I don't do "deep dives" in these cases. For instance, in the capital cases, arguments are flagged that might not hold up. 

I cannot tell you if she is right that the circuit split is "cert worthy." It is important to note that the Supreme Court is more than a "court of error correction." A circuit split is a major reason for taking a case. 

Sometimes, there is a case that troubles one or more justices on the facts. They might flag that the case is not "cert worthy" while still noting their concern. They might also note the case raises issues that the Supreme Court should take up in a different case.

Meanwhile, Alito and Gorsuch did not take part in cases addressed in the Order List. As usual, we don't have any official explanation for why. Only Kagan and Jackson do that. The others should join them.

Oral Argument

Some of the conservatives were on vibes during the oral argument regarding the regulation of mail-in voting. This time, some Republican Southern state defending their discretion to regulate had a more sympathetic hearing from the liberal side. 

Rick Hasen has more.

Upcoming

We should have one or more opinions on Wednesday.

ETA: Sotomayor also appeared to be on the dissenting side during the oral argument in an asylum case. 

Gorsuch had his first opinion (only Alito dissented). Thomas wrote a copyright opinion (Sotomayor concurred in the result with Jackson). 

... and we will have another opinion day next week.

More Illegal Boat Strikes

The ongoing illegal monstrosity that the Republican Congress is just letting Trump unconstitutionally carry out in Iran should not lead us to forget other things.

A U.S. military strike on a vessel suspected [SUSPECTED!] of hauling drugs prompted the rescue of a sole survivor, the second known instance of a successful recovery in a campaign that has killed dozens of people.

U.S. forces struck a “low profile” vessel Thursday in the Eastern Pacific transiting a common smuggling route, according to a post on social media by U.S. Southern Command, which oversees the ongoing boat strike campaign against alleged smugglers in Latin America. The strike was the 46th since early September, officials said, totaling 159 people killed.

This is still going on. 159 people killed. Murdered.

RIP Robert Mueller

Robert Mueller, an honorable public servant, has died. The usual comments and responses will now come.

Trump metaphorically pissing on his grave is understandable. Some of the comments? Understandable but depressing.

People had some fantasy vision of "Mueller Time," regarding a Sessions Justice Department (Trump 1.0) appointment, who was acting within the limits of that role. This includes not indicting sitting presidents.

[Trump was very concerned behind the scenes that the investigation would screw him over. It would end his presidency! The crybaby eventually realized how much the system was stacked in his favor.] 

OTOH, can you imagine someone like him being appointed now and Pam Bondi recusing herself?

He still offered a "roadmap" of sorts. He didn't have to do so. It was the responsibility of others, not taken, to carry things through. This includes a report that provided repeated evidence of wrongdoing, including the Trump campaign (family members like Kushner, too) engaging with Russian agents. 

These actions were consistent with President Trump’s previous invitations of foreign interference in United States elections.

[First impeachment.]

Impeachment managers repeatedly warned us about what Trump would do if you didn't stop him. People have this fantasy image of "daddy" saving us, when they are not sneering at the idea of relying on them.

Mueller honorably served, including leading an investigation akin to that of Jack Smith. Smith, to be clear, investigated a former president. He had more discretion to prosecute, as well as having more serious crimes to use to do so. 

OTOH, when Trump was re-elected, to the shame of "We the People," Jack Smith knew the game was up. 

The video is when celebrities reenacted the Mueller Report. Powerful stuff. RIP and don't join with Trump pissing on his grave. Thanks. 

Does Bruen Violate the Tenth Amendment?

Eric Segall reviews a new article co-written by Jake Charles (a law professor with an expertise in Second Amendment issues who teaches at Pepperdine, that is, not a liberal school) that comes at criticism of Bruen from a state rights lens. 

The opinion, limited by a later case, uses a historical analogue approach. Modern day regulations need to overlap with regulations, and there have to be enough examples (how many?) to satisfy the justices, from the founding era. Not totally clear if that would be 1791 (2A) or 1868 (14A).  

This approach can be challenged on multiple grounds. A major criticism is that it is simply not practical. It has led to confusion in the lower courts. There is also the general problem with originalist-like approaches. Things change. We cannot sensibly be tied to what was done in the distant past.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The article frames things in a Tenth Amendment fashion. The Tenth Amendment is a statement of principle. Applying that principle can take us in various directions. It overall promotes federalism, including protecting state power in different ways.

The authors argue that federalism includes the principle that states have the discretion to make policy. This discretion is limited by individual rights and congressional powers. This is not about a criticism of the RKBA overall. It is about the discretion states have to regulate, with the right taken for granted.

States did not regulate in the past for a variety of reasons. They were limited by constitutional requirements. A state cannot censor based on viewpoint. It cannot favor certain religious sects.

OTOH, just because they did not regulate did not mean they could not regulate. Bruen, along with other misplaced "history and tradition" tests, wrongly limit state discretion based on what they did not do. 

Why didn't they do it? A range of reasons, including different times requiring different rules. This is where a "living" (the horror!) approach reaffirms basic constitutional principles.  States, over time, develop new ways of doing things, learning as they go along. That is fine. The Constitution allows it. 

Eric Segall offers that the argument is open-ended. It does provide a basic rule that guards against misguided interference with state power. Depending on the specifics, it can apply to cases (think abortion rights) that liberals like. But that also goes to underlining rights. 

Things often can be framed in different ways. Lawyers know this. They can acknowledge or use certain frames to advance their goals. Some frames are appreciated by certain people. 

Conservatives regularly support state rights. Liberals call out their hypocrisy for selectively supporting them. Conservatives will tend to explain, "This is different." It can be helpful to use the same language and debate details.

The article frames things as a matter of Tenth Amendment rights and powers. The people have the right to pass certain types of laws and have the discretion to do so. 

This is not about a dislike of guns. It is about how artificial restraints interfere with legitimate state power. The argument fits in with "originalist" arguments. The article has plenty of 19th-century quotes to back up its arguments. History, like religion, is not just something for conservatives. 

The sloppiness of Bruen (as Segall notes) is not something to ignore. It's part of the overall discussion. If you like the RKBA, effectively upholding it should be a concern of yours. A sloppy approach, one that has to be treated like a round peg in a square hole to sensibly apply, is rather counterproductive. 

The article, however, is not just a disagreement with the opinion or statement on why it is impractical. It provides a federalism-friendly approach that brings together both sides.  

One criticism that I saw suggests it wrongly tries to argue that it provides a novel new theory. If you want to say it doesn't say anything special, that's fine. Articles can reinforce old principles, sometimes in slightly different ways.

It does not, as the person claimed, merely disagree with Bruen. It notes upfront that there are different ways to disagree with the opinion. It frames things a certain way. It grants RKBA. It honors federalism. 

The article is a helpful approach to provide a reasonable criticism of the current law that offers a sane path. It has implications that will not please all critics. For instance, if you are not a fan of gun rights or are rather absolutist about upholding them.* 

Overall, I think it is a helpful approach. Not magic. 

==

Note:  A true "history and tradition" approach to rights would leave open a lot of regulations, more than most people support under current law. 

Many people selectively realize this. They will accept more rights when applying the Constitution today, even if originally people would not think them necessary in one area of the law, but not others. 

Then, it will be "no one would have thought about that!" Cf. corporate speech with LGBTQ rights.