In The News This Week

President Trump nominated Tenth Circuit Court of Appeals Judge Neil Gorsuch to serve on the United States Supreme Court. This past week Judge Gorsuch testified before the Senate Judiciary Committee. Senators questioned him about his qualifications, his views on Supreme Court decisions, hot-button legal issues, and laws on the books. Since 1981, the hearings have been televised. Every middle and high school social studies and civics class should tap into this freebie—these recorded hearings can serve as invaluable lessons about our judicial branch.

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Judge Neil Gorsuch

We should be encouraging our students to be active participants in our democracy. To do so, we must expose them to a great deal more about how our courts work, and these hearings are a great tool.

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Remembering Felix Frankfurter

On November 15, 1882, former Supreme Court Justice Felix Frankfurter was born in Austria. In 1939, President Franklin Delano Roosevelt nominated him to the United States Supreme Court. Unlike nowadays, it wasn’t customary for nominees to appear before the Senate Judiciary Committee, however, after his religious beliefs (he was Jewish), his associations with the ACLU, and his foreign birth came under attack, he relented. In the end, the Senate confirmed his nomination, and he served on the Court until he retired on August 28, 1962. On February 22, 1965, Justice Frankfurter passed away. Learn more about his work as a lawyer, presidential advisor, professor, and justice at http://goo.gl/RoPCEe.

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Associate Justice Felix Frankfurter of the United States Supreme Court

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On This Date in Legal History

Gregory Lee Johnson was arrested for burning an American flag as a means of protesting President Reagan’s policies. He timed his demonstration to coincide with the 1984 Republican National Convention in Dallas. The delegates were meeting to renominate Reagan for president. He was convicted of violating a Texas law that made it a crime to desecrate a state or national flag, and was fined $2,000, and sentenced to a year in the county jail. Johnson appealed his conviction up to the United States Supreme Court. On March 21, 1989, the case of Texas v. Johnson was argued before the Court, and on June 21, 1989, the Court held in Johnson’s favor. Justice Brennan explained, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

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Attorney William Kunstler, on the left, is photographed here with defendant Gregory Lee Johnson, on the right. Source: Joel Seidenstein

I recommend listening to the oral argument in this case at http://www.oyez.org/cases/1980-1989/1988/1988_88_155. Several of Justice Antonin Scalia’s comments draw laughter.

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On This Date in Legal History

A West Virginia newspaper, the Charleston Daily Mail, published the name of a 14-year-old who was apprehended and taken into custody for allegedly shooting a classmate at school. Reporters were able to determine the name of the student shooter simply by interviewing witnesses, the police, and an attorney at the school. Before the newspaper reported on the incident, another paper and three radio stations had already published the student’s name. Nonetheless, a grand jury indicted the Charleston Daily Mail, its editors and reporters (“collectively referred to here as Daily Mail”) under a West Virginia law that made it a crime to report the name of a child in a juvenile proceeding without prior court approval. Daily Mail petitioned the West Virginia Supreme Court of Appeals to prevent the county officials from acting on the indictment. The appellate court sided with the paper finding the statute violated the First Amendment. The Supreme Court agreed to hear this case, and on March 20, 1979, oral arguments were presented which you can listen to at http://legacy.oyez.org/cases/1970-1979/1978/1978_78_482. On June 26, 1979, the Court affirmed the appellate court’s decision. Chief Justice Burger explained, “At issue is simply the power of a state to punish the truthful publication of an alleged juvenile delinquent’s name lawfully obtained by a newspaper. The asserted state interest cannot justify the statute’s imposition of criminal sanctions on this type of publication.”

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On This Date in Legal History

The case Weinberger v. Wiesenfeld arose after a widower, Steven C. Wiesenfeld (“Wiesenfeld”) was denied his Social Security survivor benefits upon his wife’s death during childbirth. Wiesenfeld opted not to work (outside the home) in order to raise their child. His wife, Paula Polatschek, had been the principal wage earner during their marriage. She was a teacher and always had the maximum Social Security contribution deducted from her paycheck. The Social Security Act had a provision, however, that stated fathers (unlike mothers) were ineligible to collect benefits upon their spouse’s death. So Wiesenfeld sued the Secretary of Health, Education and Welfare, Caspar Weinberger, claiming that the gender-based discrimination was unconstitutional. On January 20, 1975, Ruth Bader Ginsburg (the current senior Supreme Court Justice) represented Wiesenfeld before the United States Supreme Court. You can listen to her argument at http://www.oyez.org/cases/1970-1979/1974/1974_73_1892. On March 19, 1975, the Court agreed that the provision was discriminatory.

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On July 20, 1990, Justice William Brennan retired after serving on the United States Supreme Court for over 33 years.

Justice Brennan explained, “by providing dissimilar treatment for men and women who are…similarly situated, the challenged section violates the [Due Process] Clause.”

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On This Date in Legal History

When a special police officer, Dick Heller, tried to register a handgun in Washington, D.C., his application was denied. A law banned handguns in the home. (A lawful gun in a home had to be disassembled or locked.) Heller sued and his case was appealed up to the Supreme Court. The Court heard oral arguments in the Heller case on March 18, 2008. On June 26, 2008, the Court (in a 5:4 decision) held that the law violated the Second Amendment.

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President Reagan nominated ANTONIN SCALIA for Associate Justice of the United States Supreme Court, and he took his seat September 26, 1986.

Justice Scalia wrote, “In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of the Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.”

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On This Date in Legal History

On March 17, 1777, Supreme Court Justice Roger B. Taney was born. He was the 11th United States Attorney General and the 5th Chief Justice of the Supreme Court. He served on the Court for 28 years. He’s probably best remembered for authoring the dreadful Dred Scott v. Sandford decision. In that case the Court found that African-American slaves (and their descendants) were not citizens; consequently, they had no standing to sue (for their freedom) in a U.S. court.

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Chief Justice Roger B. Taney

Justice Taney wrote, “in the opinion of the court, the legislation and the histories of the times, and the language used in the Declaration of Independence show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.” Learn more about Chief Justice Taney at https://www.oyez.org/justices/roger_b_taney.

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On This Date in Legal History

On March 16, 1931, Aldridge v. United States was argued before the United States Supreme Court. The case involved a black criminal defendant, Alfred Scott Aldridge, who was charged with murdering a white police officer. At Aldridge’s trial, his attorney asked the judge if he could question prospective jurors about any racial prejudices; however, his request was denied. Aldridge was convicted and sentenced to death. The Supreme Court agreed to review the judge’s decision, and on April 20, 1931, the Court ordered a new trial. Chief Justice Charles Evans Hughes, speaking for the majority of the Court, explained– “The argument is advanced on behalf of the Government that it would be detrimental to the administration of the law in the courts of the United States to allow questions to jurors as to racial or religious prejudices. We think that it would be far more injurious to permit it to be thought that persons entertaining a disqualifying prejudice were allowed to serve as jurors and that inquiries designed to elicit the fact of disqualification were barred. No surer way could be devised to bring the processes of justice into disrepute.” Notably, Justice McReynolds, a Southerner, was the lone dissenter. You can read the entire decision at https://goo.gl/HbQ56g, and an enlightening piece about Justice McReynolds at https://goo.gl/VxKeWI.

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Associate Justice James Clark McReynolds

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Happy Birthday Justice Ginsburg!

On March 15, 1933, Justice Ruth Bader Ginsburg (aka “The Notorious R.B.G.) was born in Brooklyn, New York.  Read more about the Justice at http://www.lawsuitgame.com/blog/?p=3182.

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President Clinton nominated Ruth Bader Ginsburg as an Associate Justice of the Supreme Court, and she took her seat August 10, 1993.

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On This Date in Legal History

Clarence Darrow was a prominent, brilliant, criminal lawyer. On March 13, 1938, he passed away. Watch the entertaining movie, Darrow, about this celebrated attorney.

Clarence Darrow, a famous Chicago lawyer, and William Jennings Bryan, defender of Fundamentalism, have a friendly chat in a courtroom during the Scopes evolution trial. Darrow defended John T. Scopes, a biology teacher, who decided to test the new Tenessee law banning the teaching of evolution. Bryan took the stand for the prosecution as a bible expert. The trial in 1925 ended in conviction of Scopes. ca. 1925 Dayton, Tennessee, USA

Clarence Darrow is seen here, on the left, during the Scopes trial. Darrow defended John Scopes, a biology teacher, who violated a state statute that prohibited the teaching of evolution.

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March is Women’s History Month

Celebrating women’s achievements in the United States dates back to the early 1900s. “National Woman’s Day” was first celebrated on February 28, 1909. In August 1981, Congress passed a joint resolution designating the week of March 7 as “Women’s History Week.” Then in 1987, the 100th Congress passed another joint resolution extending the observance to a month, declaring March as “Women’s History Month.” Read the resolutions at http://goo.gl/YkdJIo and http://goo.gl/tKg4Ad. For more information about Women’s History Month take a look at the Library of Congress website at http://womenshistorymonth.gov/about.html.

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The Sewall-Belmont House & Museum is located on Capitol Hill. It’s dedicated to celebrating the women who worked tirelessly to obtain the right to vote and equal rights.

The next time you’re in Washington, D.C., visit the Sewall-Belmont House & Museum, which was once the headquarters for the National Woman’s Party.  Learn more at https://goo.gl/tIoZa1.

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On This Date in Legal History

On March 11, 1943, West Virginia State Board of Education v. Barnette was argued before the United States Supreme Court. The case arose after the Board of Education required all public school students to use a “stiff-arm” salute while reciting the Pledge of Allegiance. A student who refused could face expulsion, and their parents fined and imprisoned up to 30 days. Jehovah’s Witnesses brought the lawsuit to prevent enforcement of the mandate. Their religion didn’t permit the flag salute and pledge. The Supreme Court found in their favor. Justice Jackson, who authored the majority opinion wrote, “We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our constitution to reserve from official control.”

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On This Date in Legal History

Eugene Debs gave a speech intending to encourage others not to join the military. He was indicted and convicted by a jury for violating the Espionage Act. The Act made it a crime to obstruct military recruitment during World War 1. Debs appealed his conviction arguing that he was exercising his right to free speech under the First Amendment, and the Espionage Act was unconstitutional. On January 28, 1919, the United States Supreme Court heard oral arguments in Debs v. United States. On March 10, 1919, the Supreme affirmed Debs’ conviction.

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Eugene V. Debs

Clarence Darrow labored to obtain a pardon for Debs, or have his sentence commuted. President Wilson refused, but President Harding agreed to commute his sentence to time served. He was released from prison on Christmas Day in 1921. Find out more at http://debsfoundation.org.

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The Amistad Case

On March 9, 1841, the United States Supreme Court decided the Amistad case. The Court ordered the release of kidnapped African men brought to this country, by way of Cuba, to be sold as slaves. You can see the Court’s original Order at https://goo.gl/ra3dmR. If you’re interested in learning more details about this case, go to https://goo.gl/Dh4uwZ.

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This is the Old Supreme Court Chamber. It’s located in the Capitol. The United States Supreme Court met here between 1810-1860.

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On This Date in Legal History

On March 8, 1971, the United States Supreme Court decided Griggs v. Duke Power Co. The question presented was– could Duke Power require a potential employee to either have a high school education or pass an intelligence test, when neither criteria correlated with job capability. Those prerequisites disqualified African Americans from working in certain departments at a substantially higher rate than white applicants. The Court held that even in cases where there’s no discriminatory intent, if the employment practice discriminates against an individual based on race, then it violates Title VII of the Civil Rights Act. Chief Justice Burger wrote—“Congress has not commanded that the less qualified be preferred over the better qualified simply because of minority origins. Far from disparaging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant. What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract.”  To listen to the oral arguments before the Court go to https://goo.gl/qd6333.

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While you’re at the United States Supreme Court visit the gift shop. You’ll find many interesting, educational, fun, gifts.

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On This Date in Legal History

On March 7, 1927, the United States Supreme Court decided Nixon v. Herndon.  The case arose after an African American living in Texas was denied the right to vote in a Democratic primary election.  A Texas statute stated– “in no event shall a negro be eligible to participate in a Democratic party primary election held in the State of Texas.”  The Supreme Court found the statute unconstitutional.

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Oliver Wendell Holmes in 1902.

Justice Holmes explained– “it seems to us hard to imagine a more direct and obvious infringement of the Fourteenth [Amendment].  That Amendment, while it applies to all, was passed, as we know, with a special intent to protect the blacks from discrimination against them.”

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On This Date in Legal History

On March 6, 1857, Chief Justice Taney announced the United States Supreme Court’s infamous decision in Dred Scott v. Sandford. The Court held that African-American slaves (and their descendants) were not citizens; consequently, they had no standing to sue (for their freedom) in a United States court.

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The United States Supreme Court decision in the Dred Scott case.

Chief Justice Taney wrote, “in the opinion of the court, the legislation and the histories of the times, and the language used in the Declaration of Independence show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.”  See the original ruling maintained by the National Archives at http://goo.gl/Ub8Cd.

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On This Date in Legal History

On March 5, 1897, United States v. Wong Kim Ark was argued before the Supreme Court. The following facts were presented– Wong Kim Ark was born in San Francisco in 1873, and he continuously maintained a residence there. When he was around twenty-one years old, he visited relatives in China. Upon his return he was prevented from re-entering the United States, because his parents were of Chinese descent. The United States District Attorney argued that his case fell under no exception to the Chinese Exclusion Act. The Supreme Court disagreed. Justice Gray wrote, “the American citizenship which Wong Kim Ark acquired by birth within the United States has not been lost or taken away by anything happening since his birth.” “That said Wong Kim Ark has not, either by himself or his parents acting for him, ever renounced his allegiance to the United States, and that he has never done or committed any act or thing to exclude him therefrom.” Read more at http://goo.gl/CbWqIK.

Learn about the Chinese Exclusion Act at https://goo.gl/pnVGSK.

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On This Date in Legal History

In 1943, James Girouard, a Canadian, filed a petition for naturalization. When asked if he’d “take up arms in defense of this country,” he said, “No (Non-cabatant) Seventh Day Adventist.” He did say, however, that he’d serve in the army as a noncombatant. A lower court admitted him to citizenship, but on appeal the decision was reversed. This case went up to the Supreme Court, and on March 4, 1946, oral argument took place. On April 22, 1946, Justice William O. Douglas delivered the opinion for the Court and stated, “The oath required of aliens does not in terms require that they promise to bear arms. Nor has Congress expressly made any such finding a prerequisite to citizenship.” He further explained that, [o]ne may adhere to what he deems to be his obligation to God and yet assume all military risks to secure victory. The effort of war is indivisible, and those whose religious scruples prevent them from killing are no less patriots than those whose special traits or handicaps result in their assignment to duties far behind the fighting front. Each is making the utmost contribution according to his capacity. The fact that his role may be limited by religious convictions, rather than by physical characteristics, has no necessary bearing on his attachment to his country or on his willingness to support and defend it to his utmost.”

Take a look at an article published in Conscientious Objector in May 1946, about this case at http://bit.ly/2mXaFvi.

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On This Date in Legal History

On March 3, 1913, attorney Inez Milholland led a parade down Pennsylvania Avenue in Washington D.C. to draw attention to the woman suffrage movement. The suffragists were met with hostility. The police protection promised them was described as– “the flimsiest sham. Police officers stood by with folded arms and grinned while women were insulted and roughly abused.”

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Suffragist (and attorney) Inez Milholland Boissevain is photographed here leading the suffrage parade.

Read about this event in the “Woman’s Journal and Suffrage News” at http://goo.gl/rYNPSp.

Also on March 3, but in 1919, the United States Supreme Court decided Schenck v. United States. Justice Oliver Wendell Holmes famously remarked—“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. Read more at http://goo.gl/eNMqhF.

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