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06-16-1986 Correspondence From Rehnquist To White, William H. Rehnquist

Bazemore v. Friday, 478 U.S. 385 (1986)

Dear Byron,

Please join me in your opinion concurring in part and dissenting in part .

06-16-1986 Correspondence From Burger To Powell, Warren E. Burger

Allen v. Hardy, 478 U.S. 255 (1986)

Dear Lewis:

I join.

06-12-1986 Correspondence From Marshall To Powell, Thurgood Marshall

Allen v. Hardy, 478 U.S. 255 (1986)

Dear Lewis:

In due course, I shall circulate a dissent in this one.

06-12-1986 Correspondence From Rehnquist To Powell, William H. Rehnquist

Allen v. Hardy, 478 U.S. 255 (1986)

Dear Lewis:

Please join me in your Per Curiam.

06-11-1986 Memorandum To The Conference, Lewis F. Powell

Allen v. Hardy, 478 U.S. 255 (1986)

I enclose a draft of a proposed Per Curiam in Allen v. Hardy, No. 85-6593, a habeas case pending here on cert to CA7. Both the District Court and CA7 rejected Allen's contention that the prosecutor's exercise of peremptory challenges violated Swain and the Sixth Amendment. In the pending petition for cert, Allen may fairly be viewed as arguing that Batson should be applied retroactively on habeas.

06-11-1986 Justice Powell, Per Curiam, Lewis F. Powell

Allen v. Hardy, 478 U.S. 255 (1986)

In 1978, petitioner Earl Allen, a black man, was indicted for murdering his girlfriend and her brother. During selection of the petit jurors at petitioner's trial. the prosecutor exercised 9 of the State's 17 peremptory challenges to strike 7 black and 2 Hispanic veniremen. Defense counsel moved to discharge the jury on the ground that the "'State's use of peremptory challenges undercut [petitioner's] right to an impartial jury selected from a cross-section of the community by systematically excluding minorities from the petit jury." People v. Allen, 96 Ill. App. 3d 871, 875, 422 N. E. 2d 100, 104 (1981). …

06-11-1986 Correspondence From O'Connor To Powell, Sandra Day O'Connor

Allen v. Hardy, 478 U.S. 255 (1986)

Dear Lewis,

I agree with your per curiam in this case.

06-11-1986 Correspondence From Brennan To Powell, William J. Brennan

Allen v. Hardy, 478 U.S. 255 (1986)

Dear Lewis,

I can go along with your proposed Per Curiam in the above.

06-09-1986 Clerk Memo, Unknown

Bazemore v. Friday, 478 U.S. 385 (1986)

I think JUSTICE BRENNAN's opinion is very good and I recommend that you join it. It reflects your vote at conference.

06-12-1986 Justice Powell, Per Curiam, Lewis F. Powell

Allen v. Hardy, 478 U.S. 255 (1986)

In 1978, petitioner Earl Allen, a black man, was indicted for murdering his girlfriend and her brother. During selection of the petit jurors at petitioner's trial, the prosecutor exercised 9 of the State's 17 peremptory challenges to strike 7 black and 2 Hispanic veniremen. Defense counsel moved to discharge the jury on the ground that the "'State's use of peremptory challenges undercut [petitioner's] right to an impartial jury selected from a cross-section of the community by systematically excluding minorities from the petit jury.'" People v. Allen. 96 Ill. App. 3d 871, 875, 422 N. E. 2d 100, 104 (1981). …

05-08-1986 Preliminary Memorandum, H. Geoffery Moulton

Allen v. Hardy, 478 U.S. 255 (1986)

1. SUMMARY : Petr contends that (1) CA7 erred in refusing to issue a certificate of probable cause in a case that presents an issue currently pending before this Court; and (2) the DC erred in requiring him to show "cause" for his failure to produce studies detailing systematic exclusion of minority jurors.

04-25-1986 Notes From Oral Argument, Harry A. Blackmun

Bazemore v. Friday, 478 U.S. 385 (1986)

Harry A. Blackmun's handwritten notes from oral argument.

04-24-1986 Clerk Memo, Unknown

Bazemore v. Friday, 478 U.S. 385 (1986)

There may be an easy way to avoid deciding the merits of the difficult 4H club and homemaker club issue . The DC considered the Agriculture Regulation that states:

In administering a program regarding which the recipient has previously discriminated against persons on the ground of race, color, or national origin, the recipient must take affirmative action to overcome the effects of prior discrimination.

7 CFR 15.3(b)(6)(i). The DC stated that the regulation was not violated because it required a prerequisite that an action be taken on the ground of race. In the bench memo I indicated that the prerequisite …

04-20-1986 Notes From Oral Argument, Harry A. Blackmun

Bazemore v. Friday, 478 U.S. 385 (1986)

Harry A. Blackmun's notes from oral argument.

05-12-1986 Notes From Oral Argument, Harry A. Blackmun

Bazemore v. Friday, 478 U.S. 385 (1986)

Harry A. Blackmun's handwritten notes from oral argument.

11-15-1985 Preliminary Memorandum, Unknown

Bazemore v. Friday, 478 U.S. 385 (1986)

This case is curve-lined with No. 85-428, United States v. Friday. Please refer to the prelim in that case.

11-02-1985 Preliminary Memorandum, Unknown

Bazemore v. Friday, 478 U.S. 385 (1986)

The SG has submitted a reply, 10/30/85, arguing that resps' contentions concerning employees hired after 1965 are irrelevant, because the SG seeks review only of the ruling that Title VII provides no remedy for post-1965 failure to remedy racial disparities in wages paid to employees hired before 1965.

10-30-1985 Justice O'Connor, Per Curiam, Sandra Day O'Connor

Delaware v. Fensterer, 474 U.S. 15 (1985)

In this case, the Delaware Supreme Court reversed respondent William Fensterer's conviction on the grounds that the admission of the opinion testimony of the prosecution's expert witness, who was unable to recall the basis for his opinion, denied respondent his Sixth Amendment right to confront the witnesses against him. 493 A. 2d. 959 (1985). We conclude that the Delaware Supreme Court misconstrued the Confrontation Clause as interpreted by the decisions of this Court.

10-30-1985 Preliminary Memorandum, Karl S. Coplan

Bazemore v. Friday, 478 U.S. 385 (1986)

SUMMARY: Petrs challenge rulings by the dc, affirmed by CA4 1) that differentials between wages paid to white and black employees of the North Carolina Agricultural Extension Service (NCAES) did not constitute employment discrimination; 2) that maintenance of local 4-H clubs that are voluntarily segregated does not violate the Title VI prohibition against discrimination in programs receiving federal aid; and 3) that the NCAES did not discriminate against blacks in selecting county extension chairmen.

10-29-1985 Correspondence From Marshall To O'Connor, Thurgood Marshall

Delaware v. Fensterer, 474 U.S. 15 (1985)

Dear Sandra:

Please add the following to your Per Curiam:

JUSTICE MARSHALL dissents from this summary disposition, which has been ordered without affording the parties prior notice or an opportunity to file briefs on the merits. See Maggio v. Fulford, 462 U.S. 111, 120- 121 (1983) (MARSHALL, J ., dissenting); Wyrick v. Fields, 459 u.s. 42, 51- 52 (1982) (MARSHALL, dissenting).

10-22-1985 Correspondence From Blackmun To O'Connor, Harry A. Blackmun

Delaware v. Fensterer, 474 U.S. 15 (1985)

Dear Sandra:

My original inclination was to hold this case for No. 84-1279, Delaware v. Van Arsdall. That is still my inclination.

You now have six votes, however, for your proposed per curiam. Would you please note at the end of your opinion:

"JUSTICE BLACKMUN would grant certiorari and give this case plenary consideration."

10-22-1985 Justice O'Connor, Per Curiam, Sandra Day O'Connor

Delaware v. Fensterer, 474 U.S. 15 (1985)

In this case, the Delaware Supreme Court reversed respondent William Fensterer's conviction on the grounds that the admission of the opinion testimony of the prosecution's expert witness, who was unable to recall the basis for his opinion, denied respondent his Sixth Amendment right to confront the witnesses against him. 493 A. 2d. 959 (1985). We conclude that the Delaware Supreme Court misconstrued the Confrontation Clause as interpreted by the decisions of this Court.

10-21-1985 Correspondence From White To O'Connor, Byron R. White

Delaware v. Fensterer, 474 U.S. 15 (1985)

Dear Sandra,

Please join me.

10-21-1985 Correspondence From Powell To O'Connor, Lewis F. Powell

Delaware v. Fensterer, 474 U.S. 15 (1985)

Dear Sandra:

I agree with your Per Curiam.

Bill Brennan's suggestions may be helpful. But my join is not conditioned on your acceptance of them.

10-21-1985 Correspondence From O'Connor To Stevens, Sandra Day O'Connor

Delaware v. Fensterer, 474 U.S. 15 (1985)

You describe Agent Robillard's testimony as involving "an implied prior representation of which the declarant disclaims present knowledge," on the grounds that his qualification as an expert implied that "he had a valid reason for reaching that conclusion at the time of his investigation." But the question reserved in Green involved an express prior representation specifically introduced by
the prosecution as substantive evidence. I see nothing in our cases that would justify embarking on the difficult and questionable enterprise of deciding when there has been an implied representation. In any event, in this case, Agent Robillard openly admitted at voir …

10-21-1985 Correspondence From O'Connor To Brennan, Sandra Day O'Connor

Delaware v. Fensterer, 474 U.S. 15 (1985)

I think your concerns may be satisfied by the following revisions to the circulating draft, which I am willing to make if they are satisfactory to you:

10-21-1985 Correspondence From Brennan To O'Connor, William J. Brennan

Delaware v. Fensterer, 474 U.S. 15 (1985)

Dear Sandra,

Thank you very much for your prompt reply to my letter. I am happy to join your opinion with your suggested changes. I very much appreciate your consideration.

10-20-1985 Justice Correspondence, Unknown

Delaware v. Fensterer, 474 U.S. 15 (1985)

As the Court has granted cert on two Confrontation Clause cases, I think this case should be held. New Mexico v. Earnest, No. 85-162 (Oct. 18 Conference), which raises the question whether the Clause precluded admitting a hearsay confession of a codefendant without first considering the statement's reliability, will discuss issues of reliability and will reinterpret Ohio v. Roberts, 448 u.s. 56 (1980) in ways that are certain to be relevant to this case. Delaware v. Van Arsdall, No. 84-1279, raises the question of whether barring the defendant from cross-examining a witness about a possible deal with the prosecutors in …

10-18-1985 Correspondence From Brennan To O'Connor, William J. Brennan

Delaware v. Fensterer, 474 U.S. 15 (1985)

At conference I vote to hold this case for Delaware v. Van Arsdall, No. 84-1279. Although I still prefer that disposition, I wonder if you would consider making some changes in your per curiam so that I could join it. My suggestions are the following:

10-18-1985 Correspondence From Stevens To O'Connor, John Paul Stevens

Delaware v. Fensterer, 474 U.S. 15 (1985)

In his concurring opinion in California v. Green, the Chief Justice emphasized "the importance of allowing the states to experiment and innovate, especially in the area of criminal justice." 399 U.S. at 171. Because I believe that comment is applicable to the Delaware court's consideration of the question that is functionally equivalent to the
question left open in Green (and discussed in footnote 18 on page 169), I adhere to my vote to deny cert.