Today in Supreme Court History: July 19

Rostker v. Goldberg, 448 U.S. 1306 (decided July 19, 1980): Does the draft (applicable to males only) discriminate? The District Court said yes and enjoined enforcement. Here, Brennan grants a stay of that order (as to males born in 1960 and 1961), noting the significant questions involved and the likelihood of cert. As it turned out, cert was granted and the Court upheld the males-only draft, with Rehnquist’s opining that males and females were not “similarly situated” (453 U.S. 57 (1981)). (For years it was obvious that a later Court would hold differently, but what about the current Court?)

Akel v. State of New York, 81 S.Ct. 25 (decided July 19, 1960): Frankfurter denies motion to fix bail in a narcotics conviction, because New York’s highest court had denied it and had not certified that a federal issue was involved. (Note his snark toward New York’s most prestigious judge: “When a judge as solicitous as is Judge Stanley H. Fuld to safeguard the interests of defendants in criminal cases denies an application for bail pending a proposed petition for certiorari to this Court on a claim of a substantial federal right, one naturally attributes some solid ground for such denial.”)

Owen v. Kennedy, 84 S.Ct. 12 (decided July 19, 1963): Black refuses to stay order requiring Mississippi officials to hand over poll tax records in federal elections under Civil Rights Act of 1960, rejecting arguments as to self-incrimination and due process (prohibition on poll taxes became part of the Constitution the next year)

Aberdeen & Rockfish R. Co. v. Students Challenging Regulatory Agency Procedures (SCRAP), 409 U.S. 1207 (decided July 19, 1972): Burger refuses to lift stay of new railroad rates which allegedly would have the effect of reducing incentives to recycle in violation of the National Environmental Policy Act of 1969 (he notes, “Our society and its governmental instrumentalities, having been less than alert to the needs of our environment for generations, have now taken protective steps”); railroads won on full appeal, 412 U.S. 669 (1973)