Today in Supreme Court History: June 8

Gitlow v. New York, 268 U.S. 652 (decided June 8, 1925): New York’s “criminal anarchy” statute (still on the books!) permissible despite First Amendment because penalizes advocating violent overthrow of government (here, a Communist tract) --

-- limited by Brandenburg v. Ohio, 395 U.S. 444 (also decided June 8, but in 1969): First Amendment protected pro-Klan rally at which people dressed in white robes and lit crosses because no “imminent lawless action” urged (perhaps a different result if speech was made in a black neighborhood)

Lomax v. Ortiz-Marquez, 590 U.S. 595 (decided June 8, 2020): Prison Litigation Reform Act prohibits in forma pauperis petitions if there have been three previous dismissals as frivolous or for failure to state a claim, even though two of them stated they were without prejudice

Muscarello v. United States, 524 U.S. 125 (decided June 8, 1998): “carrying a firearm” aggravation factor in drug trafficking charge includes firearm in vehicle used for drug transaction even though not picked up for use

Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (decided June 8, 2009): appellate judge should have recused himself on review of large verdict against company whose CEO had bankrolled his election campaign (unsurprisingly, the judge had voted to throw out the verdict)

Zivotofsky v. Kerry, 576 U.S. 1 (decided June 8, 2015): striking Act of Congress allowing American citizen born in Jerusalem to list his place of birth as “Israel” despite Jerusalem not recognized as Israel’s capital; President has exclusive power to recognize foreign nations and can disregard Congressional directives (this result is ironic, given Truman’s immediate recognition of Israel in 1948)

Houston, E. & W.T.R. Co., 234 U.S. 342 (decided June 8, 1914): state violated Dormant Commerce Clause by authorizing different railroad rates for intrastate and out-of-state travel

Virginia v. West Virginia, 234 U.S. 117 (decided June 8, 1914): sur-reply by West Virginia allowed though not authorized by rules because states as litigants in original jurisdiction cases are entitled to procedural slack (Virginia won this dispute, as to reimbursement for public works projects when W. Va. was part of the state) (Virginia was given a lot of slack too; it didn’t file this suit until 1906; there must be no statute of limitations on claims by state vs. state) (see also this case, March 6)

Health and Hospital Corp. of Marion County v. Talevski, 599 U.S. 166 (decided June 8, 2023): public nursing homes can be sued under §1983 based on violations of Federal Nursing Home Reform Act of 1987 (here, as to improper restraints and transfers)

Burdick v. Takushi, 504 U.S. 428 (decided June 8, 1992): Hawaii prohibition on write-in voting did not violate First Amendment right to free association because Hawaii has liberal rules allowing candidates to get onto ballot

Dalehite v. United States, 346 U.S. 15 (decided June 8, 1953): 2300 tons of fertilizer made at the direction of the federal government and under its control exploded, causing a chain reaction of oil fires which killed 581 people.  Personal injury suits dismissed because of Tort Claims Act exception for “discretionary” acts with no negligence shown.  (Congress then passed a law allowing the victims to sue.)