Today in Supreme Court History: 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 burned flag outside the 1984 Republican convention)

Carson v. Makin, 596 U.S. 767 (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. 162 (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. 845 (decided June 21, 2022): attempted 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. 69 (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)

United States v. Rahimi, 602 U.S. 680 (decided June 21, 2024): Close call! Court avoids impact of Bruen (any gun restriction violates Second Amendment if not “deeply rooted” in nation’s history) by saying that keeping guns from dangerous persons has long history (upholding 18 U.S.C. §922(g)(8) which applies to those subject to domestic violence restraining orders) (only Thomas, dissenting, seems to admit that what was “deeply rooted” was the right of husbands to threaten their wives with violence)

Dept. of State v. Muñoz, 602 U.S. 899 (decided June 21, 2024): citizen wife has no right to bring in noncitizen spouse; Constitution does not have a specific right to live with spouse and not a right “deeply rooted” in nation’s history or tradition (husband denied visa due to membership in “transnational criminal gang” MS-13)

Texas v. New Mexico, 602 U.S. 943 (decided June 21, 2024): in original jurisdiction case, Court rejects settlement reached between Rio Grande Compact states (Texas had accused New Mexico and Colorado of hogging Rio Grande water) because United States objected (it would affect water for federal reclamation project)

Smith v. Arizona, 602 U.S. 779 (June 21, 2024): Sixth Amendment Confrontation Clause violated when second expert’s opinion (that drug found in defendant’s shed was meth) is based on tests run by first expert whom defendant had no opportunity to cross-examine as to testing protocol, etc. (first expert could not be located)

Erlinger v. United States, 602 U.S. 821 (decided June 21, 2024): it is up to jury (not the judge) to find beyond reasonable doubt that prior “violent” offenses were committed separately (three are required to support aggravated sentencing under Armed Career Criminal Act) (after original sentencing, case law re-construed some of the offenses as not being “violent”, so prosecution resorted to citing crime spree from 26 years ago, when defendant was 18)