Today in Supreme Court History: May 19

Merck Sharp & Dohme Corp. v. Albrecht, 587 U.S. 299 (decided May 20, 2019): drug manufacturer liable under state law failure to warn theory (osteoporosis drug causing unusual femoral fracture); no clear evidence that FDA had rejected its proposal to add the warning to the label (this is a recognized defense to failure to warn claims)

Romer v. Evans, 517 U.S. 620 (decided May 20, 1996): Colorado amended its constitution to prohibit any law protecting gay people from discrimination.  (IOW, discrimination must be allowed!)  Court holds this violated Equal Protection.  Notable as the first gay-friendly Court decision.  As Kennedy put it for the Court, “It is not within our constitutional tradition to enact laws of this sort.  Central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.”  In dissent Scalia has a point when he calls gay people “a politically powerful minority” but, calling everyone’s attention to Bowers v. Hardwick, still seems unaware that women as well as men give blowjobs.

Herrera v. Wyoming, 587 U.S. 329 (decided May 20, 2019): neither the creation of the Wyoming Territory in 1868 nor Wyoming’s admission to the Union in 1890 affected Crow Tribe’s property rights and right to hunt under earlier treaty

Bloom v. Illinois, 391 U.S. 194 (decided May 20, 1968): defendant accused of criminal contempt serious enough to carry a prison sentence (here, submitting a fraudulent Will for probate) is entitled to a jury trial

Andrews v. United States, 373 U.S. 334 (decided May 20, 1963): criminal defendants must be allowed to make a statement before being sentenced

Alabama v. Shelton, 535 U.S. 654 (decided May 20, 2002): Apparently there is no claim for violation of the right to counsel if only a suspended sentence resulted.  Here, the Court holds that such a sentence cannot include the possibility of future “activation” (i.e., imprisonment).

Bruton v. United States, 391 U.S. 123 (decided May 20, 1968): Confrontation Clause violated by admitting into evidence co-defendant’s confession if in jury’s mind it can implicate the defendant even if not adduced for that purpose

Lucas v. Alexander, 279 U.S. 573 (decided May 20, 1929): no tax on amounts received before applicable taxing law (Revenue Act of 1918) went into effect

City of Arlington, Texas v. FCC, 569 U.S. 290 (decided May 20, 2013): FCC was entitled to Chevron deference as to its regulation setting 90-day deadline for state/local governments to act on siting applications for wireless services (statute, 47 U.S.C. §332(c)(7)(B)(ii), requires decision only “within a reasonable time”)

Sontag Chain Stores Co. v. National Nut Co., 310 U.S. 281 (decided May 20, 1940): manufacture and sale of patented machine (we’re only told it was a “nut treating apparatus”) for enlarged purpose is not patent infringement even after enlarged purpose falls within reissued patent

Doctor’s Associates v. Casarotto, 517 U.S. 681 (decided May 20, 1996): Federal Arbitration Act preempts Montana statute requiring any contract with an arbitration clause to put it in capital letters on the first page (dispute between Subway sandwich chain and franchisee)

Schlitz Brewing Co. v. United States, 181 U.S. 584 (decided May 20, 1901): bottled beer is not different enough from barrel beer to entitle bottler to “drawback” (refund of duty paid on imported materials when materials are changed and then exported) (I disagree, but with a cheap beer like Schlitz it hardly matters)