From the Annals of the Supreme Court – In1869, the U.S. Supreme Court handed down its decision in Texas v. White which essentially eviscerated the argument of individual state sovereignty apart from the Union. The SCt ruled that Texas still had the right to sue in the federal courts despite having seceded in 1861. Texas has sued for an injunction prohibiting George W. White and others from transferring U.S. issued bonds they purchased from the secession-era Texas State Military Board during the Civil War. The bonds had been issued to Texas as part of the Compromise of 1850, but at the time of the Civil War not all such bonds had been issued. Texas sold the bonds to raise funds durng the war. After the war, the US Treasury refused to redeem the war-issued bonds. Texas sued to reclaim the bonds from the purchasers. Under Article III, section 2 of the US Constitution, which provides original jurisdiction in the Supreme Court in cases where the State is a party, Texas sued directly in the U.S. Supreme Court At the SCt, the issue turned on whether Texas, having seceded and not having completed Reconstruction, had status in the Union and therefore the right to sue as a federal court. Texas argued that the Union was indestructible and Texas’ status as a state remained unchanged by the war. White argued that Texas, by seceding from the Union and waging war against the United States, had lost the status of a state in the Union and therefore had no right to sue in the SCt. In a five-to-three decision authored by Chief Justice S. P. Chase, the court held the Union to be indestructible and thus not dissoluble by any act of a state, the government, or the people.
From the Annals of the Supreme Court – In 2000, the United States Supreme Court issued its opinion in Bush v. Gore, holding that the use of different standards of counting in different counties violated the Equal Protection Clause of the U.S. Constitution and that no alternative method could be established within the time limit under federal law to determine controversies as to appointment of electors – which was the same day. The Court voted 7-2 on the violation of the Equal Protection Clause with a proviso that it was more or less a one-time only decision. However, the Court was split 5–4 as to whether an alternate recount method was feasible. The widely-criticized decision had the effect of awarding all of Florida’s electoral college votes to Texas Gov. George W. Bush which gave him a total of 271 or one more than needed. U.S. Vice President Al Gore conceded the election the next day.
Bush’s presidency proved disastrous on several counts with Bush leading the U.S. into the war in Iraq on spurious grounds, the inability to conclude the war in Afghanistan, and the near complete financial collapse of 2008.
From the Annals of Voting Rights – In 1944, the U.S. Supreme Court issued its opinion in Smith v. Allwright. The Court held that the Democratic Party’s “white primary” system was unconstitutional. The case started when African-American dentist Lonnie E. Smith attempted to vote in the Democratic primary in his Harris County precinct. Under the “white primary” system, Smith was denied a ballot. In the 1940’s, winning the Democratic primary was tantamount to election in all but rate cases. If you could not vote in the primary, essentially you could not vote at all. Smith fought back with the assistance of attorneys supplied by the National Association for the Advancement of Colored People (including future U.S. Supreme Court justice Thurgood Marshall). Smith filed suit in the U.S. District Court for the Southern District of Texas in 1942 arguing that he had been wrongfully denied his right to vote under the Fourteenth, Fifteenth, and Seventeenth amendments by the precinct election judge, S. E. Allwright. He lost at the district court, but appealed all the way to the Supreme Court which in an 8-1 decision ruled in his favor. Discrimination continued in the form of “poll taxes” and other tactics employed to suppress minority voting, but tThe Smith decision did end the white primary in Texas. The number of African Americans registered to vote in Texas increased from 30,000 in 1940 to 100,000 in 1947.
On Tuesday, the U.S. Supreme Court held that Texas has been using an obsolete standard in determining whether persons convicted of capital crimes have the requisite mental capacity to deserve execution for their actions. In a 5-to-3 decision, the Court determined that Bobby James Moore, who killed a store clerk in in Houston in 1980 during a botched robbery, had not been judged by a correct standard for his decided mental deficiencies. Guilt was not an issue; nor was the fact that Moore had extremely limited mental abilities. In fact, prosecution’s expert witness had testified that Moore “suffers from borderline intellectual functioning.” The case now goes back to the Texas Court of Criminal Appeals – a court notoriously favorable to upholding death penalty convictions. The state must come up with a new method to determine if a convicted inmate is intellectually disabled and therefore ineligible for execution. Texas can no longer rely on decades-old medical standards and a controversial set of factors. The Texas Tribune has more.
Moore was convicted of capital murder and sentenced to death in July 1980, three months after he walked into a Houston supermarket with two other men and fatally shot James McCarble, the 73-year-old clerk behind the counter, according to Texas’ brief to the high court.
In 2014, a Texas state court used current medical standards, which looks for deficits in intellectual and adaptive functioning that began as a child, to determine Moore was intellectually disabled and could not be executed. But the Texas Court of Criminal Appeals overruled the decision, claiming the lower court erred by using those standards instead of the state’s test.
The test, commonly known as the Briseno standard, was established by the Court of Criminal Appeals in 2004, two years after the U.S. Supreme Court ruled that executing the intellectually disabled was unconstitutional. The court defined the test using a medical definition from 1992 — which claims intellectual and adaptive functioning must be “related,” meaning Moore’s poor adaptive skills could be traced to something else, like an abusive childhood. The test also uses several other nonclinical factors (the Briseno factors) to help courts determine adaptive functioning. The Court of Criminal Appeals claimed, based on its test, that Moore doesn’t legally have the disability.
Included in the Briseno factors is a controversial reference to Lennie, a character from John Steinbeck’s novel “Of Mice and Men.” The Briseno opinion written by the Court of Criminal Appeals said most citizens might agree a person like Lennie, a childlike character who didn’t intend to kill a woman but simply didn’t understand his strength, should be exempt from execution. The state has argued the reference was an “aside.” Critics say it exemplifies the arbitrariness of defining intellectual disability in Texas.
In the opinion, Ginsburg faults Texas for using current medical standards in other criminal cases, but not with the death penalty.
“Texas cannot satisfactorily explain why it applies current medical standards for diagnosing intellectual disability in other contexts, yet clings to superseded standards when an individual’s life is at stake,” she wrote.
The Texas Court of Criminal Appeals ruled Moore was not intellectually disabled by looking at both intellectual and adaptive deficits. But the high court knocked down the ruling not only on adaptive functioning — how he can learn new skills, etc. — but also on intellectual functioning as well. Previous court rulings have stated that when intellectual functioning is “borderline,” with an IQ at or around 70, the state must look into adaptive behavior. Moore’s IQ, 74, led the high court to rule that this was necessary, which is what triggered Roberts’ dissent.
Roberts agreed that the nonclinical Briseno factors are an “unacceptable method” of determining adaptive deficits but said the Texas Court of Criminal Appeals still performed its due diligence in determining Moore’s intellectual functioning.
“The Court overturns the CCA’s conclusion that Moore failed to present sufficient evidence of both inadequate intellectual functioning and significant deficits in adaptive behavior without even considering ‘objective indicia of society’s standards’ reflected in the practices among the States,” Roberts wrote. “The Court instead crafts a constitutional holding based solely on what it deems to be medical consensus about intellectual disability. But clinicians, not judges, should determine clinical standards; and judges, not clinicians, should determine the content of the Eighth Amendment. Today’s opinion confuses those roles.”
Moore’s case was the third time since 2002 that the high court considered the death penalty and the intellectually disabled. That year, justices ruled that executing people with intellectual disabilities is unconstitutional, but it left it up to the states to legally determine the condition. In 2014, the court weighed in on borderline cases, ruling that states can’t use an IQ below 70 as the sole way to define the disability.
From the Annals of the Losing Litigators – In 2010, then Texas Attorney General (and now Poor Idiot Governor) Greg Abbott made the following statement regarding the passage of the Affordable Care Act: “The federal health care legislation passed tonight violates the United States Constitution and unconstitutionally infringes upon Texans’ individual liberties. To protect all Texans’ constitutional rights, preserve the constitutional framework intended by our nation’s founders, and defend our state from further infringement by the federal government, the State of Texas and other states will legally challenge the federal health care legislation.”
Abbott completely failed in his attempt (and wasted a bunch of Texas tax dollars) to have the ACA overturned in federal court. In National Federation of Independent Business v. Sebelius, the Unitied States Supreme Court upheld Congress’ power to enact most provisions of the ACA and Health Care and Education Reconciliation Act including the individual mandate requiring most Americans to have health insurance or pay a penalty. The Court upheld the mandate as a constitutional exercise of Congress’s taxing power.
From the Annals of Criminal Justice In 1954, the landmark appeal styled Hernández v. the State of Texas was brought before the United States Supreme Court. Hernandez is considered to be the only Mexican-American civil rights case decided by the Court in the post-war era.
Pedro Hernandez, a Mexican-American agricultural worker, was convicted by an all-white jury in Jackson County for the 1950 murder of Joe Espinosa. Hernandez’s pro bono legal team, led by Gustavo C. Garcia, wanted to use Hernandez’s conviction as a test case to challenge “the systematic exclusion of persons of Mexican origin from all types of jury duty in at least seventy counties in Texas.” The appeal was based on the established practice of systematically excluding Mexican Americans, a recognized minority in Texas, from service on grand juries and juries. The evidence showed that although numerous Mexican Americans were citizens and had otherwise qualified for jury duty in Jackson County, during the previous 25 years no Mexican Americans were among the 6,000 persons chosen to serve on juries. This was a violation of the equal protection clause of the Fourteenth Amendment, as juries were restricted by ethnicity. The Supreme Court unanimously ruled in favor of Hernandez, and required he be retried by a jury composed without discrimination against Mexican Americans. The Court held that the Fourteenth Amendment protects persons beyond the racial classes and applies to discrimination based on nationality groups as well.
Photo of Pedro Hernandez with his attorneys Gustavo Garcia and Johnny Herrera.
From the Annals of Voting Rights – In 1940, Lonnie Smith, an African-American dentist from Houston, was denied a ballot to vote in a Democratic primary because of his race. The stated rationale was that the parties ran their primary elections and that as a private entity, the Democratic Party of Texas could decide its membership and thus determine who could and could not vote in its primary elections. Of course, Texas was a one-party state at the time (much like now) and winning the Democratic primary was tantamount to winning office in all but a very few instances. The ensuing legal battle lasted four years and resulted in a landmark U.S. Supreme Court decision – Smith v. Allwright , 321 U.S. 649 (1944) in which Smith was represented by future Supreme Court Justice Thurgood Marshall. The Supreme Court overturned the Texas law that authorized the Democratic Party to set its internal rules which called for whites only primaries. The court held that it was an unconstitutional violation of the equal protection clause of the 14th Amendment for the state to delegate its authority over elections to the Democratic Party in order to allow discrimination to be practiced. This ruling affected all other states where the party used the white primary rule and was an important step in opening the ballot box to citizens of all races.
Photo of Lonnie Smith
Harold Cook at Letters from Texas does an excellent job of explaining the dilemma the GOP-controlled Senate faces in attempting to obstruct Pres. Obama from filling the vacancy resulting from Justice Scalia’s death. In Red’s view to the extent that they are counting on Donald Trump winning the Presidency and nominating the next Scalia, they are playing a losing hand.
Sen. Ted Cruz (TP-Texas) has determined that the Senate should refuse to engage in its Constitutional role in confirming a nominee to replace Justice Antonin Scalia. In support of this obstructionism, the Tea Party stalwart declared that the decision should be left for the next president. “We have 80 years of precedent of not confirming Supreme Court Justices in an election year.” Interesting, but as usual completely false.
President Ronald Reagan nominated Justice Anthony Kennedy to a vacant Supreme Court seat in November of 1987. Kennedy’s nomination received bipartisan support and he was confirmed in a 97-0 vote by the Senate in February 1988. Red and others (but apparently not the Junior Senator from Texas and self-styled always smartest man in the room) remember that 1988 was an election year and that February of 1988 was less than a year before Reagan left office. One wonders what Ronnie would think of bald-faced liar like Cruz.
And since Cruz fancies himself as an originalist and or strict constructionist, it might be interesting to look back at other Supreme Court justices who were confirmed in election years.
Chief Justice Oliver Ellsworth – appointed by Washington – confirmed March 4, 1796
Justice Samuel Chase – appointed by Washington – confirmed January 26, 1796
Justice Alfred Moore – appointed by Adams – confirmed April 21, 1800
Justice William Johnson – appointed by Jefferson – confirmed May 7, 1804
Justice Roger Taney – appointed by Jackson – confirmed March 15, 1836
Justice Philip P. Barbour – appointed by Jackson – confirmed March 15, 1836
Justice Lucius Lamar – appointed by Cleveland – confirmed January 15, 1888
Chief Justice Melville Fuller – appointed by Cleveland – confirmed July 20, 1888
Justice George Shiras – appointed by Harrison – confirmed July 26, 1892
Justice Mahlon Pitney – appointed by Taft – confirmed March 13, 1912
Justice Louis Brandeis – appointed by Wilson – confirmed Jun 1, 1916
Justice John Clarke – appointed by Wilson – confirmed July 24, 1916
Justice Benjamin Cardozo – appointed by Roosevelt – confirmed March 1, 1932
Justice Frank Murphy – appointed by Roosevelt – confirmed January 16, 1940
It appears that Sen. Cruz and his ilk have little or no appreciation for the considerable precedent of the Senate actually doing its job and putting aside election year politics to act on Supreme Court nominations. But what else would you expect?
The death of Justice Antonin Scalia may deadlock several critical Texas cases now pending before the U.S. Supreme Court. Red would argue that the most important is Evenwel v. Abbott a case in which the justices heard arguments last year. The case involves a diabolical plan by ultra right-wing conservatives to take control of state elections through the Court rather than through free and fair elections. In a twist of the “One Man One Vote” doctrine, the plaintiffs have argued that their voting power is limited by the way Texas draws its state legislative districts. The claim is that districts for state representatives and senators should be based on the number of eligible voters in each district and not on population.
This would be in direct contrast to Congressional districts which are required to be based on population by the Constitution. The Evenwel case specifically challenges Texas Senate districts. A ruling in favor of the plaintiffs would allow states to draw districts using eligible voters and exclude children, legal and undocumented aliens, persons who have had voting privileges suspended and others. This would result in a massive shift of representation away from urban areas to more conservative rural and small town districts.
A decision in that case is pending, but if the justices don’t want to rule on a case in which review has already been granted, they can announce that the cert petition was “improvidently granted,” which means lower court ruling holds. Another alternative, would be to hold over the case until a new justice is appointed at which time they can rehear oral arguments. No one knows the fate of this case yet, but it is probably the most important case that the Court will decide this year.