Today in Supreme Court History: May 20

Merck Sharp & Dohme Corp. v. Albrecht, 587 U.S. --- (decided May 20, 2019): drug manufacturer liable under state law failure to warn theory because no “clear evidence” that it notified FDA of risk of side effect (osteoporosis drug carried risk of unusual femoral fracture) with the FDA then rejecting its proposal to add warning to label

Romer v. Evans, 517 U.S. 620 (decided May 20, 1996): Colorado amended its constitution to prohibit any action designed to protect gay people from discrimination. (In other words, you mustbe allowed to discriminate!) The Court holds that this violated the Equal Protection clause. Notable as the first gay-friendly Court decision. As Kennedy put it in his majority opinion, “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, relying on Bowers v. Hardwick, still seems unaware that women as well as men give blowjobs.

Herrera v. Wyoming, 587 U.S. --- (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

Alabama v. Shelton, 535 U.S. 654 (decided May 20, 2002): Apparently there is no right to counsel if only a suspended sentence results. 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): admitting into evidence confession of co-defendant violates Confrontation Clause if in the jury’s mind it can prejudice the defendant whether or not it is adduced for that purpose

Lucas v. Alexander, 279 U.S. 573 (decided May 20, 1929): no tax on amounts received before the 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 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 to state in capital letters on first page that it is subject to arbitration (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 take exception to this conclusion, but with a cheap beer like Schlitz it hardly matters)