Lockhart v. Nelson

488 U. S. 33

November 14, 1988

Criminals could be sentenced to extra time if they could be proved ‘habitual offenders’ by the introduction of four prior convictions. Four prior convictions were offered for burglar Johnny Lee Nelson, but it was later discovered that one of those convictions had been pardoned by Governor Orval Faubus. Nelson argued that he could not be retried because of the Double Jeopardy clause. A case called Burks v. United States held that Double Jeopardy applied when a sentence was overturned on the basis of insufficient evidence. The government argued that introducing the pardoned conviction was a simple trial error, and that the rule against Double Jeopardy for insufficient evidence did not apply.

The Court held 6-3 that introducing the pardoned conviction was a trial error, and that a new trial was possible. Rehnquist stated that Burks was about protecting suspects when the government had totally failed to prove its case in the original trial. Here, a seemingly valid conviction had been introduced at trial, and Nelson’s sentence was later overturned because that conviction’s admission was in error. Rehnquist said that simple errors in admission of evidence were not the same as a simple lack of evidence, erroneous or not. He thus allowed the government to retry Nelson, and introduce four valid prior convictions.

Marshall, joined by Brennan and Blackmun, dissented. Marshall stressed that pardons totally expunge the conviction. Thus, the admission of that conviction into evidence was effectively like admitting a blank piece of paper into evidence. That, he contended, would certainly be a simple instance of insufficient evidence. The government needed to produce four prior convictions, and they produced only three. Marshall also complained that the majority was hasty and conclusory in its opinion, quite in contrast to the careful consideration usually found in the Court’s other Double Jeopardy cases.


Shell Oil Co. v. Iowa Dept. of Revenue

488 U. S. 19

November 8, 1988

Shell extracted much of its oil from the outer continental shelf, which is all the land beneath the first three miles of coastal waters. Iowa imposed an income tax on Shell for the business it did in Iowa, but Shell contended that it was partially immune from the tax due to the oil it sold there from the continental shelf. Shell said that the Outer Continental Shelf Lands Act (OCSLA) exempted all oil and gas extracted from state taxation laws.

The Supreme Court unanimously ruled that Iowa’s tax was not preempted by OCSLA. Marshall said that when the text of OCSLA is carefully parsed, it only bans taxation by states adjacent to the continental shelf itself. Marshall showed that this was the correct interpretation through recourse to legislative history. While a state like California could not tax the business activity of extracting oil just off its coast, all states remained free to tax the refined oil and gas that was eventually sold within state lines. Thus, Iowa’s income tax on all the oil and gas sold by Shell within the state was just fine.

While this ruling was pretty trivial, the day it was announced was momentous. That evening, Bush slaughtered Dukakis in the Electoral College. Reportedly, Brennan, Marshall, and Blackmun watched stonily as the election results rolled in. They had all stubbornly stayed on the Court throughout the eight Reagan years, but now they faced either four or eight years from the Bush-Quayle team. The future of the liberal bloc looked grim indeed.

Huntington v. Huntington Branch, NAACP

488 U. S. 15

November 7, 1988

A town zoning law allowed the construction of multifamily housing projects only in the town’s urban core. Nearly all the town’s black population lived in the urban core, and the outlying areas were all almost entirely white. The local NAACP asked the town to amend their zoning code to allow for multifamily housing projects to be built in the non-urban white areas. The town refused, and the NAACP charged that this refusal perpetuated housing segregation, and violated the 1968 Civil Rights Act.

In a 6-3 per curiam ruling, the Court held that the town had indeed violated the 1968 Civil Rights Act. The Court offered no analysis of its own, but gave its imprimatur to the broad findings of the lower court that the disparate impact standard would be used to decide the case, and that the town’s justification for not amending the zoning code was insufficient. White, Marshall, and Stevens, without opinion, noted that the case should have received oral argument.

Pennsylvania v. Bruder

488 U. S. 9

October 31, 1988

A police officer stopped a car that was driving erratically and ran a red light. During the stop, the police officer observed signs of intoxication, and asked if the driver had been drinking. He answered in the affirmative, and subsequently failed a sobriety test. The driver was then arrested and given the Miranda warning. The issue was whether the officer’s question about drinking before the arrest was unconstitutional without a prior Miranda warning.

The Supreme Court ruled 7-2 that the officer’s question was Constitutionally sound. In a per curiam opinion, the Court said that the facts of the case were almost identical to those in Berkemer v. McCarty. In Berkemer, the Court had ruled that questioning during a traffic stop was not custodial investigation, and did not require prior administration of the Miranda warning. The same principle applied in the case at hand.

Marshall filed his customary dissent against any and all summary judgments by the Court. Stevens, joined by Marshall, whined that certiorari should not have been granted, because the case involved absolutely no novel question of law. In his view, the Court should never take a case without a doctrinal aim in mind, and should never reverse a judgment merely because it’s erroneous.

Justice Stevens is colossally and staggering wrong. The Court’s mandate is not to resolve interesting doctrinal puzzles, but impartially administer justice. Real people are affected by lawless lower court rulings, and the Supreme Court is often their only hope of vindication. Telling them that their cases aren’t doctrinally interesting enough to reverse is the height of banally unjust cruelty.

Rhodes v. Stewart

488 U. S. 1

October 17, 1988

Two prisoners sued to get magazines in prison. By the time the suit was decided, one prisoner was dead and the other had been paroled. Nonetheless, the living plaintiff sought to get attorneys fees under section 1988 as the prevailing party. The government argued that he could not be the prevailing party since the case was effectively moot and he had obtained effectively no relief.

The Supreme Court agreed that no 1988 fees could be awarded in a 6-3 per curiam decision. With reference to Hewitt v. Helms, the Court stated that declaratory judgment does not make you a prevailing party if you obtain no actual relief regarding your original complaint. As the plaintiff was out of prison, he got nothing by winning his court case. Marshall dissented because of his steadfast belief that the Court should never make summary judgment rulings. Blackmun, joined by Brennan, disagreed with the majority’s reading of Hewitt. Blackmun said that the ex-prisoner was still literally a prevailing party, even if he obtained no real relief for winning.

1987-1988: Mega Colossal Retrospective Bonanza!

I’m glad to have this year out the way, because I’m ready for the much more fun 1988-1989 term. This was a weird, transitory, and not particularly ideological term without too many compelling storylines. The next term overflows with amazing storylines.

But, to return to this term, let’s get a rundown of the Justices.

Rehnquist: He continued his trend from last year of being practically invisible. He wrote the grand majority opinions in Bowen v. Kendrick and Morrison v. Olson, but neither one was really memorable as an opinion. Beyond those two towering works, you’re barely even aware that the guy exists. I hope he distinguishes himself more in the coming years, because it would be a shame if the Rehnquist Court contains practically no Rehnquist.

Brennan: He was a bit less annoying this term than last term. There seemed to be a lot fewer quixotic criminal case dissents. There was that ridiculously over the top majority opinion in Lakewood v. Plain Dealer, but the dissent was over the top too. As before, I did find some of his dissents compelling, and thought he had it right. He’s very good at the art of portraying precedent as favorable to his argument – probably better than any other Justice. He wrote less than I thought he would, leaving Blackmun or Stevens to dissent for him in a great many cases. The man was in his twilight.

White: Like Rehnquist, White was also pretty invisible during this term. He loved to toss off cryptic concurrences that were no more than a few sentences long. As bare as those concurrences were, even they were more memorable than any majority or dissenting opinions. While clearly the weakest link of the conservative coalition, he didn’t have too many terrible deciding votes this term other than Mills v. Maryland.

Marshall: Much of what I said about Brennan applies to him too. He was less annoying, had a few really convincing dissents, and was far more silent than I would have expected. He too was in his twilight.

Blackmun: Blackmun was the year’s breakout star. After near invisibility last year, he became, to a large extent, the vanguard of the liberal wing this year. Even so, he was still more than capable of joining the conservative bloc when he felt compelled to do so.

Stevens: Stevens was the surprise conservative savior of the year, salvaging a vast number of wins that would have otherwise been ties. All things considered, he wasn’t that bad this year at all. He did tend to lard up his opinions with long, unending footnotes, but we were spared the awful eminent domain opinions that characterized his output last year. He’s very trusting of institutions, very pragmatic, and very unwilling to rock the boat (with some weird exceptions like Praprotnik). I wish every term’s Stevens could be like 1987-1988 Stevens

O’Connor: O’Connor is still in her generally reliable conservative vote phase. While she wouldn’t dissent alone, she was quite the fixture when there were multiple conservative dissenters. Nonetheless, we saw one of the earliest warning signs of the awful squishiness to come in her terrible and illogical Thompson v. Oklahoma concurrence. I must stress though that her Thompson opinion was very unusual for her at the time. Indeed, part of the ‘fun’ of going through the next few terms will be seeing her decline in real time.

Scalia: He was a bit of a disappointment this term, quite honestly. He joined the liberals in a lot of cases, and he was far less prone to going hyper-originalist like he occasionally did in the previous term. Still, there was his utterly epic Morrison v. Olson dissent, which really redeems the term for him. And he certainly retained his status as the Justice most likely to whip out a hilarious or memorable turn of phrase.

Kennedy: From what little we saw of him, he was a bland and generic conservative. But the 1988 Kennedy is a far cry from the one we have today. 1988 Kennedy’s writing is precise, logical, studious, and welcomely unemotional. The pompous, grandiose blather that characterizes him today is nowhere to be found. Like O’Connor, it will be interesting to watch his decline over the next few terms.

Some things which became extremely apparent during this term include how much I hate governmental immunity, even when it limits tort liability. Also, that meta-lawsuits are the worst things ever. Even Scalia said, in one dissent, that nothing is more wasteful than litigating about where to litigate. Immunity and meta-lawsuits can both join the exclusionary rule in the realm of things that drive me nuts.

A lot of the best, worst, and most important cases of the year were not decided by ideological lineups. Yes, there was Bowen v. Kendrick, but that was the exception rather than the rule. You had Stevens crossing over in a slew of important cases. Scalia was memorably in lonely dissent for Olson. And then there were scores of unanimous cases, some of which were really awful. Clark v. Jeter, though not bad enough to contend for the Proverbs 18:5 Prize, gets my vote as the ‘sleeper’ terrible decision of the year – and it was unanimous!

As stated above, Scalia had all the best quotes during the year. I’m too lazy to link to all of them, but you can click on the “Scalia” category and scroll through to find some of the highlights. Other than him, O’Connor’s brutal summation of the majority’s irresponsible holding in Sun Oil v. Wortman really stands out.

My sample size is only two years, so I could be proven wrong, but I’ve been struck by how infrequently certain topics come up in Supreme Court decisions. For one, you usually don’t see them trying to invent a new liberty right like abortion or gay sex all that often. For all the attention that Griswold v. Connecticut gets, there may only be a handful of cases since 1965 that really build on it. Another thing is the limitations of Congressional lawmaking power. You just don’t see cases that ask whether or not a federal law violates the spending clause, or interstate commerce clause, or necessary and proper clause. Last year’s South Dakota v. Dole gets so much attention because it was one of the few which actually addressed the issue.

Without further ado, let’s award the two prizes, and get on to the next term. As with last year, there were more candidates for the dishonor of worst decision than for the honor of best decision. My preliminary list for the worst decision had something like 14 cases on it, about half of which were death penalty ones. Two rulings fell short of winning the prize, but merited dishonorable mention.

Commissioner v. McCoy: It’s cases like this one which demonstrate why Americans rightfully hate the IRS. After Robert McCoy’s father died, Robert missed an administrative deadline which could have saved him $20,000 in taxes. The IRS not only refused to waive this deadline for the grieving son, but imposed a penalty fine, and interest on the total amount owed. McCoy won in the lower court because the judges recognized how heartless, abusive, and a$$holish the IRS was acting. Why the Supreme Court felt the need to review this case, out of the thousands on the docket, and overturn the lower court is unfathomable.

Maynard v. Cartwright: This was the worst death penalty ruling of the entire term, and sadly, it was one of the unanimous ones. Here, Cartwright committed a murder which was especially heinous, atrocious, and cruel. Then, the Supreme Court vacated his death sentence because they claimed to not know what the words “especially heinous, atrocious, or cruel” meant. The bitter irony here is that the Justices were so danged sure that executing Cartwright in the face of this allegedly vague statutory language would be “cruel and unusual” – language which is, if anything, even vaguer.

Winner of the October Term, 1987 Proverbs 18:5 Prize:

Phillips Petroleum Co. v. Mississippi

Much like last year, the death penalty cases were bad, but a property seizure case was ultimately far worse. Property owners who had lived on and paid taxes on lands for over 150 years were summarily told “Whoops! Actually the State of Mississippi acquired title to your land in 1817, and didn’t get around to realizing this and asserting its property ownership until now.” This was done not on the basis of indisputable law, but on the basis of some ancient and highly ambiguous dicta. The equitable rights of the landowners were callously and casually brushed aside by the five Justice majority. In a truly free country, a government would not behave this way, and show such sociopathic disrespect toward the property rights of its own people.

As for the best case of the year, Berkovitz and Westfall were excellent anti-immunity decisions. Lyng v. Automobile Workers upheld a great number of unpopular Biblical principles. But in the end, one stood above all others.

Winner of the October Term, 1987 Deuteronomy 16:20 Prize:

Buchanan v. Stanships, Inc.

Last year, Carrie Rose was the oppressed widow that the Supreme Court delivered, despite the lack of novel legal issues in her case. This year, the role of oppressed widow saved by the Court was filled by Mercilyn Buchanan. Her quest for relief was being illegally frustrated by an abusive shipping company. The case involved no novel legal questions, but the Court still stepped in to reverse the terrible lower court ruling through summary judgment. This is precisely what the Supreme Court should be doing – squelching obvious injustice in the lower courts. I hope to see more cases like this one in years to come.

And now, we’re finally off to the legendary October Term, 1988. It was this term which would finally give the Rehnquist-White-O’Connor-Scalia-Kennedy bloc a chance to prove how conservative it could be.

1987-1988 Voting Patterns

1987-1988 was the most understaffed Court term between 1969-1970 and 2015-2016. Only eight Justices participated in a large portion of the cases. In several instances, only seven participated. There were a few times with just six, and even one memorable occasion with only five.

As a result, the voting alignments are just as unusual as you’d expect. I counted over 70 different alignments, and about two thirds of them only happened once. The most popular alignments, by far were 8-0 (with no Kennedy) and 9-0. Roughly tied for third place, with about 10 times each, were 5-3 (no Kennedy) with Brennan, Marshall, and Blackmun dissenting, and 5-4 with Brennan, Marshall, Blackmun, and Stevens dissenting.

No other combination came up more than about 5 times. Stevens and Scalia were the Justices most likely to dissent alone, with White and Marshall not far behind, and the other five almost never resorting to it. Brennan and Marshall dissented as a lonely pair only a few times, and usually had either Stevens or Blackmun with them in their dissent.

O’Connor, strangely enough, may have been the most conservative voter during the term. There are several cases each where she dissents with just Rehnquist, just White, and just Scalia. No other Justice seemed quite so frequently in dissent with just one other.

In cases where the four liberals got a fifth vote, it was usually White who defected. He did so about half a dozen times, most notably in Mills. O’Connor did it a few times, and Rehnquist, Scalia, and Kennedy each did it once.

Speaking of Kennedy, not much can be learned about him from the cases he voted on. He’s sort of generically conservative, but that’s about it. He could usually be found wherever the bulk of the other conservative Justices were.

Stevens seemed remarkably conservative this term, casting the fifth or sixth vote for the conservative side in a large number of cases. In some instances, it might be chalked up to his desire to prevent loads of tie votes. Still, it’s interesting to see a time when he was more a ‘wild card’ with a slight leftward bent than an automatic liberal vote.

Blackmun was in some ways the opposite of Stevens. While Stevens would join conservatives to make a majority, Blackmun tended to join conservatives when they were in dissent. Unfortunately, the alignments of these dissenting votes are so random that no deeper lessons can be drawn.

A left to right lineup starts out easy, but then gets hard. Marshall is clearly most liberal, closely followed by Brennan. Blackmun is plainly in third place, with Stevens plainly in fourth. White is the most natural swing voter. But trying to rank Rehnquist, O’Connor, Scalia, and Kennedy is really hard. You could make plausible cases for almost any ranking. Signs of the awful squishiness to come from O’Connor and Kennedy in the future were minimal.

1987-1988 Conservative Victories

This term had a relative shortage of conservative victories, but that was mostly due to the absence of Anthony Kennedy for much of the term. It was a weird and transitory term in general, but there were still 10 times that the legendary Rehnquist-White-O’Connor-Scalia-Kennedy bloc outvoted the Brennan-Marshall-Blackmun-Stevens bloc. You can read my post on the 1986-1987 conservative victories for a more detailed summary of my methodology.

Total victories: 10 (6.54%)

Patterson v. McLean Credit Union – When the Court hears this case next year, the parties should brief and argue whether Runyon v. McCrary, which banned certain private organizations from discriminating based on race, should be overturned

Wheat v. United States – A District Court can refuse to allow, on conflict of interests grounds, for a lawyer to represent a defendant when that lawyer is already representing the defendant’s alleged co-conspirators, even if the defendant and the co-conspirators are all prepared to waive the conflict of interest

Ross v. Oklahoma – When, in a capital case, a judge fails to excuse an unqualified potential juror, and the defense has to use one of its peremptory challenges to remove that potential juror, there is no inherent violation of the Eighth Amendment

Florida v. Long – The rule that pension payouts cannot differ based on sex was not judicially established until the Norris (and not the Manhart ruling). Furthermore, pension payouts that began before the Norris ruling cannot be retroactively or prospectively adjusted upward to meet that ruling’s demands

Patterson v. Illinois – An interrogating interview with an indicted suspect before he receives a lawyer is not automatically unconstitutional. Furthermore, in such an interview the suspect can make an informed waiver of his right against self-incrimination after hearing only the Miranda warning

Schweiker v. Chilicky – It remains an open question as to whether or not a statute explicitly banned the creation of a Bivens remedy for alleged Due Process violations by the Social Security administration

Kadrmas v. Dickinson Public Schools – It violates neither the Equal Protection clause, nor a more general right to education, to require poor families to pay a fee for bus transportation to school, even if only certain school districts are statutorily allowed to impose such a fee

Boyle v. United Technologies Corp. – When a private contractor manufactures products according to the specifications stated in contracts with the government, those manufacturers are immune from state law torts under a theory of government contractor immunity

Bowen v. Kendrick – The Adolescent Family Life Act, which provides grants to organizations to promote chastity, does not facially violate the Establishment clause by allowing religious groups to receive grants, or by requiring grant applicants to state how they might involve religious groups in their programs

United States v. Kozminski – Involuntary servitude, as used in the Thirteenth Amendment, and some enforcing statute, only includes servitude coerced by physical threats or legal threats, and does not include servitude coerced by psychological manipulation

Coy v. Iowa

487 U. S. 1012

June 29, 1988

In cases of alleged sexual assault against children, Iowa allowed a screen to be put up in a courtroom when the children testified. It allowed the accused to see the children, but not the other way around. One defendant argued that the screen placement violated his confrontation clause rights – it literally took away his ability to confront the witness face to face. Iowa responded that face to face confrontation was not a core guarantee of the clause, and that it was justified by the need to protect deeply traumatized child victims.

The Court ruled 6-2 that the screen violated the confrontation clause (Kennedy did not participate). Scalia waxed poetic about the ineffable value of having to make an accusation to someone’s face, and how it would be helpful in letting the jury assess witness credibility. He found that this face to face confrontation was, in fact, a core central value of the Sixth Amendment that the state could not so easily escape with its vague contention that some child victims will be traumatized by seeing their abuser. He remanded the case for harmless error analysis.

O’Connor, joined by White, concurred, and noted that Iowa might use alternative methods of protecting child witnesses like closed circuit television. She also said that the presumption of a face to face right could be overcome in extreme cases for an especially traumatized witness. Blackmun, joined by Rehnquist, dissented. Reviewing precedents, he found no basis for concluding that face to face confrontation was a core value of the Sixth Amendment. He noted that protecting terrified child witnesses was a compelling interest, and observed that the screen actually burdened it far less than the admission of hearsay evidence under various hearsay exceptions. He also slapped down an argument not reached by the majority that the screen would cause the jury to draw an inference of guilt.


Watson v. Fort Worth Bank & Trust

487 U. S. 977

June 29, 1988

A black bank employee was passed over for promotions on four separate occasions. She eventually launched a wide-ranging class action lawsuit, alleging that the bank discriminated not just against her, but against other blacks. Promotion decisions were made based on subjective criteria, and lower courts held that decisions based on subjective criteria were not amenable to a disparate impact suit. Instead, only objective criteria like tests or educational requirements could be challenged as discriminatory because of their disparate impact on minorities.

Unanimously, the Court held that subjective criteria could be attacked in a disparate impact suit (Kennedy did not participate). O’Connor stressed that it would frustrate the goals of the Civil Rights Act if only objective criteria counted, because that could leave a large swath of discriminatory practices beyond remedy. If plaintiffs could show that a minority group was disadvantaged in promotions through subjective means, there would be a prima facie case of discrimination.

In a portion joined by Rehnquist, White, and Scalia, O’Connor noted that this new standard would have to be carefully guided, or else employers would probably resort to quotas just to protect themselves from potential suits. She noted that the plaintiff would always have the ultimate burden of proof in disparate impact cases, that employers would be able to attack bare statistics as not persuasive enough, and that employers would have to be able to argue that its subjective criteria were geared toward legitimate business purposes.

Blackmun, joined by Brennan and Marshall, did not like O’Connor’s attempt to cabin the reach of the ruling. He said that, based on precedents, the employer would shoulder the burden of proof once the plaintiff made a prima facie case. And he thought O’Connor’s solicitude to an employer’s plea of legitimate business motivation was also unfounded in prior disparate impact precedents. Blackmun felt that a very robust disparate impact standard was necessary to stop employers from hiding discrimination behind a smokescreen of subjective evaluation. Stevens concurred in judgment. He agreed with the central point that subjective criteria could be attacked, but declined to spell out the implications as all the other Justices had tried to do.

Disparate impact theory is a hopelessly manipulable stratagem. It’s easy for plaintiffs to prove, and almost impossible for employers to conclusively disprove. It’s a great scheme if you’re an unscrupulous trial lawyer looking to make some quick bucks. In college, I had a friend whose dad had to leave a business because of one of these BS disparate impact suits. As she explained to me, her dad actually hired more women than men overall, and even promoted more women than men overall. But because the percentage of women who got promoted was smaller than the percentage of men who got promoted, his business was accused of sex discrimination, and he knew that fighting the suit was a losing battle. Until there’s a way to cut down on cynical manipulation of the system like this, I have no use for disparate impact claims.