Monthly Archives: July 2014

Booth v. Maryland

482 U. S. 496

June 15, 1987

In 1983, John Booth broke into the home of Irvin and Rose Bronstein, and he murdered them in gory fashion. When it came time for sentencing, the prosecution introduced statements from the children and grandchildren of the Bronsteins. Even months and years later, the family remained broken, scarred, and frightened by the senseless and barbaric evil. The murder had happened days before one granddaughter’s wedding. After a marriage filled with grieving rather than joy, the newlyweds left the reception for the funeral rather than their honeymoon. After Booth was given the death penalty, he claimed that introducing this victim impact evidence made the sentencing unfair under the Eighth Amendment.

Justice Powell wrote for a bare 5-4 majority, which agreed that victim impact statements rendered the death sentence invalid. He argued that these statements shift the focus of the trial from the defendant to the victim, and that the happenstance of a victim having a large and articulate family was not relevant to the blameworthiness of a murderer. Powell also thought the possibility of cross-examining victims was unsavory, and that victim impact statements had an inflammatory quality that clashed with the deliberative atmosphere a trial ought to have.

White and Scalia filed remarkably restrained dissents, each of which was joined by the other, along with Rehnquist and O’Connor. Both pointed out that criminal law has always allowed for harsher punishments based on consequences that the culprit had no control over, like whether an attempted murder succeeds, or whether reckless driving kills a bystander. Both also denounced the double standard of allowing the defendant to offer an avalanche of mitigating evidence unrelated to the instant crime, while letting the victims say nothing. Both saw that the Court was imposing its own value judgments rather than letting the legislatures do so.

White further showed that the decision was not just a value judgment, but the wrong value judgment. “The affront to humanity of a brutal murder such as petitioner committed is not limited to its impact on the victim or victims; a victim’s community is also injured, and in particular the victim’s family suffers shock and grief of a kind difficult even to imagine for those who have not shared a similar loss… There is nothing aberrant in a juror’s inclination to hold a murderer accountable not only for his internal disposition in committing the crime but also for the full extent of the harm he caused… At bottom, the Court’s view seems to be that it is somehow unfair to confront a defendant with an account of the loss his deliberate act has caused the victim’s family and society.”

It is darkly amusing to see liberals lecturing about the unfairness of a crime’s impact determining its perpetrator’s fate. In the realm of torts, these same liberals are more than happy to stick innocent men and women who did absolutely nothing wrong with ruinous multi-billion dollar punishments (see ‘strict liability’ and ‘res ipsa loquitur’). This case also shows how screwed up the remedies are for Constitutional violations. Not all violations can be said to genuinely merit the overturning of a sentence as a remedy – and this case is a paradigmatic example. Booth’s crime was depravity incarnate, and no subsequent procedural blip can possibly make his execution “cruel and unusual.”

The five Justices in the majority flatly ignored the Bible’s command against showing partiality to the wicked. They would silence a community and its victims, and denigrate the generational effects of sin, and do so in the name of ‘justice.’ The majority’s evident belief that Booth himself was somehow victimized by his own victim’s anguish, grief, and brokenness debases and mutilates the concept of justice beyond recognition. The prophets of the Old Testament wrote beautifully poetic laments of sin’s corrosive and destructive effects on the human community. Doubtless, Powell would have all this scrubbed from the scripture, and have it replaced by a parade of advocacy showing how ‘misunderstood’ and ‘good at heart’ Assyria and Babylon were, despite their respective ‘mistakes’ of brutally obliterating Israel and Judah.

Booth died of natural causes in prison on April 27, 2014, more than three decades after his barbaric murders. His death sentence was reinstated and overturned several more times after this one decision, always on specious grounds that caustically mocked the concept of justice. Until the day of his death, he was unrepentant, and felt that he was the greater victim. God is his judge now.


Perry v. Thomas

482 U. S. 483

June 15, 1987

Kenneth Morgan Thomas wanted to sue his boss Barclay Perry, but he had already signed an agreement to arbitrate. Undeterred, Thomas claimed that this agreement was invalid under a California law that held such agreements in employment contracts void. Perry responded that this California law conflicted with the Federal Arbitration Act (FAA), which generally mandated that arbitration agreements be honored. Thus, the California law had to give way under the Supremacy Clause.

The Court ruled 7-2 that the FAA did trump the California law. Putting to the side some questions about Perry’s standing, Marshall wrote that the two laws were in plain and fatal conflict. The only strong counterargument was a 1973 case known as Merrill Lynch v. Ware, which had enforced the very same California anti-arbitration statute. Ware, Marshall said, did not consider the effect of the FAA, and only looked at whether the Securities Exchange Act had provided for preemption of state laws on the subject.

Stevens dissented on the basis of his belief that the FAA had not been intended to preempt state laws, and that the Court’s many recent decisions to that effect were erroneous. In a separate dissent, O’Connor agreed with Stevens on this point. She further noted that Congress admittedly had the power to pass laws which created exceptions to the FAA’s general rule. If Congress could do this, then O’Connor felt that states could too.

Much as I dislike anti-arbitration provisions, I am forced to admit that O’Connor and Stevens may be right. Looking at the sparse language of the FAA, it’s anything but clear and unequivocal that states were meant to be barred from all legislation in the arena. Regardless, I can’t help but note the irony of Thomas breaking the arbitration promise he made in a contract in order to hold Perry accountable for allegedly breaking promises made in a contract. “When a man… swears an oath to put himself under an obligation, he must not break his word; he must do whatever he has promised” – Numbers 30:2

Houston v. Hill

482 U. S. 451

June 15, 1987

A Houston ordinance made it a crime to “in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty.” Raymond Wayne Hill, a gay rights activist who had been charged with this offense four times, sued to have the ordinance invalidated under the First Amendment. After some early losses in the lower courts, Houston argued that the Supreme Court should ask the Texas courts for a clarifying interpretation, and abstain from interpreting the act by its own lights.

The Court ruled 6-3 that certifying the case to Texas courts for clarification was inappropriate, and ruled 8-1 that the ordinance did violate the First Amendment. Brennan wrote for the majority, and he stressed the law’s overbroad nature, citing precedents that had recognized the need for citizens to be free to blow off some steam against policemen. The ordinance could easily have been written narrower, and it allowed officers too much discretion, since the mere act of talking had been sufficient to sustain convictions in practice. Brennan rejected the argument that Pullman abstention was necessary. Because he found the meaning of the ordinance plain, he did not think state courts could put any spin on the act which would render it Constitutional.

Powell, joined by Rehnquist and O’Connor, wrote to say that certification to Texas courts was a good idea. He believed that the state courts might be able to narrow its reach, especially through requiring those who violate it to have the intent to do so. Having lost this argument to Brennan though, Powell admitted that abstention would otherwise be inappropriate, since getting an authoritative construction from state courts in the absence of certification would be difficult. Examining the law, he found that it might be seen merely as prohibiting obstructive conduct rather than speech, but ultimately concluded that its vagueness and reckless pattern of enforcement compelled the conclusion of unconstitutionality.

Rehnquist did not join that last section of Powell’s opinion, and found the ordinance wholly proper. He offered no argument of his own, but cited a dissent from a similar previous case. Scalia joined all of Powell’s opinion except the certification bit, and wrote a brief concurrence stating that he agreed with Brennan on that question. All in all, I think the Court struck the right balance. The only shame is that the logic of this case hasn’t yet been extended to a judge’s power to impose summary contempt of court, that power being perhaps the most egregiously unconstitutional fixture in our criminal justice system today.

Crawford Fitting Co. v. J. T. Gibbons, Inc.

482 U. S. 437

June 15, 1987

An old law from 1853 said that federal courts could require losing parties to pay up to $30 per day to cover the expenses of expert witnesses. Since expert witnesses are a wee bit more expensive these days, some courts interpreted Rule 54(d) from the Federal Rules of Civil Procedure as giving courts discretion to go above that statutory limit in awarding court costs.

Rehnquist wrote for seven Justices, rejecting the claim that Rule 54(d) allowed courts to exceed the $30 per day limit from the 1853 Fee Act. To allow courts that kind of discretion, he said, would make the provisions of the Fee Act entirely without meaning. Furthermore, the discretion that Rule 54(d) allowed was not incompatible with the Fee Act’s limits, because of the possibility of downward (rather than upward) discretion. To round out this analysis, Rehnquist showed how consistent all of this was with precedents over the years. Blackmun added a one sentence concurrence which left open the possibility that Section 1988 might allow for higher expert witness fees.

Marshall tossed off a baffling dissent that was joined by Brennan. Observing that the Fee Act did not purport to be an exhaustive list of allowable costs, he said that Rule 54(d) gave courts basically unlimited discretion in awarding costs. He also pointed out that Rule 54(d) had no real meaning under the majority’s analysis, since the Fee Act had already made awarding the enumerated costs discretionary. Marshall further argued that principles of equity required the ability to impose higher costs.

I call the dissent “baffling” because it never once even attempts to explain away or even address the plain $30 limit in the statutory text. In conservative circles, Marshall and Brennan have a reputation of being unprincipled activist hacks. This looks like precisely the sort of dissent which ultimately garnered them that reputation. What’s so frustrating is that it isn’t even good activism. The last thing this nation needs is more civil lawsuits, more overpaid expert witnesses, and more vindictive court cost shifting.

Miller v. Florida

482 U. S. 423

June 9, 1987

Florida guidelines recommended a 3 1/2 to 4 1/2 year imprisonment for a certain crime. Judges could sentence above or below those bounds, but only if they wrote a judicially reviewable explanation. The guidelines were later revised to make the recommendation 5 1/2 to 7 years. Miller committed the offense before the guideline change, but was convicted and sentenced afterward. He was given the full 7 years under the new guidelines. Miller argued that this violated the ex post facto clause of the Constitution.

O’Connor wrote for a unanimous Court. She demonstrate that the case was largely controlled by precedents. Increasing the time of a sentence was a classic ex post facto violation, and that the guidelines were somewhat discretionary did not matter. While Miller could still have been given a 7 year sentence under the old guidelines, the change still worked to his disadvantage by altering the baseline, and relieving the judge of the duty to justify such a sentence in writing. Lower courts had found that changes in parole guidelines were not ex post facto violations, but O’Connor distinguished those rulings – the parole guidelines did not have the force of law like the Florida guidelines, and they did not require written justification for deviations from them.

While I’m not ready to say that O’Connor was wrong, this is a case that cries out for a dissent. The precedents she cites look strong, but her attempts to distinguish the federal parole guidelines were somewhat less than convincing. More than anything, the case just seems wasteful; on remand, my hunch is that the judge gave him seven years again – this time with written explanation.

California v. Superior Court of Cal., San Bernardino Cty.

482 U. S. 400

June 9, 1987

Richard and Judith Smolin divorced, and Judith was given custody of the children. She remarried James Pope, and began moving around the country, finally settling in Louisiana. After being frustrated for years in his attempts to have visitation with his children, Richard obtained custody of them through the California courts, but Judith refused to turn the children over. As a last resort, Richard drove to Louisiana, found his children at a school bus stop, and took them back to California. At Judith Pope’s request, Louisiana charged Richard Smolin with kidnapping, and requested that California hand him over. California refused, claiming that Smolin could not possibly be guilty of kidnapping because he had legal custody of the children.

The Court ruled 7-2 that California had a Constitutional duty, under its extradition clause, to hand over Smolin. O’Connor wrote the majority opinion, which stressed that extradition requests were not the proper time for states to make judgment calls about the innocence or guilt of the accused. As long as a state followed correct procedure in making the extradition request, the other state could not refuse based on its own legal view of the charges.

Stevens dissented, and was joined by Brennan. He found that Smolin’s custody of the children was so well established legally that it was impossible for Louisiana to really consider him a fugitive from justice. If such baseless extradition requests had to be honored, Stevens argued, state boundaries would be meaningless. He disputed O’Connor’s treatment of extradition precedents, and pointed out that federal kidnapping law required all states to respect the custody judgments of other states. Stevens concluded by predicting that parents would continue to abuse the extradition system in custody cases.

Remarkably, the seven Justices in the majority were very obviously furious at Judith Pope and the State of Louisiana. They agreed with the dissent that, on the evidence, Smolin was innocent of the kidnapping charge. “We are not informed by the record why it is that the States of California and Louisiana are so eager to force the Smolins halfway across the continent to face criminal charges that, at least to a majority of the California Supreme Court, appear meritless. If the Smolins are correct, they are not only innocent of the charges made against them, but also victims of a possible abuse of the criminal process.” This sort of language is about as close as the Court will ever come to telling a prevailing party “f*ck you.”

I’m not sure whether I agree with O’Connor or Stevens. More than anything, I’m simply depressed by the facts of the case. My heart goes out to the children, Jennifer and Jamie, who were grievously wounded by their parents. Vitriolic custody battles scar the soul like almost nothing else in the judicial system. Children are not meant to be ripped apart from a father or mother.

What makes all of this so tragic is that the answer has always been available in plain sight. Chaste, self-sacrificing, lifelong monogamy has been commended to humanity since Genesis 2. And every empirical experience since then has abundantly proven that deviations from that design bring only misery, bitterness, poverty, heartbreak, and darkness. And still we reject God’s design, on the plea of preserving autonomy and ‘freedom’ – and to those altars, we sacrifice millions of ruined lives, calling them acceptable collateral damage. “In those days there was no king in Israel; everyone did what was right in his own eyes” – Judges 21:25.

Caterpillar Inc. v. Williams

482 U. S. 386

June 9, 1987

Several workers for Caterpillar were given contractual promises that the company would always provide them with work, even if they were laid off. At some point, due to cutbacks, these employees had to take lesser positions – ones that were covered by the collective bargaining agreement. Eventually, Caterpillar had to let these employees go completely, and the company did not line up new jobs for them, claiming that the collective bargaining agreement required no such thing. The employees sued in state court to enforce the original contracts. Caterpillar tried to get the case removed to federal court, arguing that all state suits involving collective bargaining agreements were preempted by the Labor Management Relations Act (LMRA).

Unanimously, the Court ruled that the state suit was not preempted. Brennan wrote that the suit did not involve the collective bargaining agreement, because in the original complaint, the employees relied only on their former individual contracts. That Caterpillar would use the later collective bargaining agreement as a legal defense did not matter. Jurisdiction law was written so as to make the plaintiff the master of the complaint. To allow a respondent to use an anticipated legal defense to drag a plaintiff into federal court would destroy this principle.

No surprise this was unanimous. The relevant law was pretty clear. Maybe I’m being uncharitable, but I can’t help feeling that unanimity would not have happened had the statutory text favored the company rather than the employees. Labor unions, much like criminal defendants, never seem to lose in the minds of Brennan and Marshall, regardless of what the relevant precedents and statutes seem to say.

Board of Pardons v. Allen

482 U. S. 369

June 9, 1987

Two prisoners in Montana claimed that they were entitled by statute to release on parole. The statute said that prisoners “shall” be released when the parole board is satisfied that it would serve the best interests of society. Because of the imperative language, the prisoners felt that a court could declare them entitled to freedom should the parole board fail to do so at the proper time. Montana argued that the decision involved too much discretion on the part of the parole board to be amenable toward judicial policing.

In a 6-3 decision, the Court ruled that the prisoners had a statutory right to parole. Brennan focused relentlessly on the “shall” language, and downplayed the degree to which discretion factored into the decision. Critically, he found the statute little different from a Nebraska one that the Court had previously interpreted to create a positive right to release. O’Connor, joined by Rehnquist and Scalia, dissented. The criteria for parole was so vague and broad that judicial oversight was practically impossible. She characterized the Nebraska statute decision as an aberration, and pointed out that even that statute gave the board far less discretion.

This is one of those decisions that unmistakably smacks of judicial activism, and I was a bit surprised and disappointed to see Powell and White fall prey to Brennan’s rather specious arguments. Frankly, in reading the statute for myself, it seems obvious that the word “shall” was not meant to create a positive right. At best the statute was ambiguous, and out of comity, if nothing else, the Court should have deferred to Montana’s interpretation.

O’Lone v. Estate of Shabazz

482 U. S. 342

June 9, 1987

Shabazz was an inmate at a New Jersey prison, and was a devout Muslim. He desired to observe Jumu’ah every Friday with other prisoners of the Muslim faith. For some time, this was allowed, until the prison changed the rules, citing security and logistical concerns. Shabazz claimed that denying him the opportunity to participate in Jumu’ah violated the Free Exercise clause.

In a 5-4 decision, Rehnquist sided with the prison authorities. Citing Turner v. Safley, decided just eight days earlier, Rehnquist said that the legal test in prisons when fundamental rights (like free speech, marriage, or religion) were implicated was whether the regulations were reasonable and related to penological interests. He observed that concerns over security, and the logistical difficulty of accommodating the Jumu’ah meeting were reasonable ones. He further observed that Muslim prisoners already received a good deal of accommodation, and that prisons had a right to discourage affinity groups from forming.

Brennan dissented, and was joined by Marshall, Blackmun, and Stevens. They observed that fundamental Constitution rights ought not be abrogated on the basis of “reasonableness,” even in the prison context. Even assuming that standard though, Brennan thought the prison was unreasonable. He pointed out that federal prisons allowed Jumu’ah to be observed, and that Jumu’ah was as central to the Islamic faith as Mass was to Catholicism. Finally, he showed that the prison’s asserted interest did not appear to be backed up by any factual findings, and thus argued that these interests should not be afforded blind deference.

A puzzle is why Stevens dissented. As we’ve seen before, he is almost invariably against religious claimants. This is the only time I’m aware of that he ever dissented in favor of a religious claim. My best guess is that he knew how tacky it would look to abandon wholesale the logic of the Turner dissent that he had joined just eight days earlier. As for the majority, its analysis was highly disappointing. This was yet another hammer blow in the slow and tragic death of the Free Exercise clause at the hands of the conservatives. Fortunately, the Religious Land Use and Institutionalized Persons Act of 2000 mitigated some of the damage done by O’Lone.

The brief discussion about affinity groups caught my eye. The prison said “any time you put a group of individuals together with one particular affinity interest . . . you wind up with . . . a leadership role and an organizational structure that will almost invariably challenge the institutional authority.” Interesting. Islam, and Christianity for that matter, do indeed challenge institutional authority. Both declare that God is above America, and that His laws trump a nation’s civil laws. In 1987, this thought apparently terrified conservatives. Today, it terrifies liberals to an almost unthinkable degree. It just goes to show that everyone on the political spectrum, to one level or another, hates the idea of God’s sovereign authority (Cf. Romans 8:7).

First English Evangelical Church of Glendale v. County of Los Angeles

482 U. S. 304

June 9, 1987

A Lutheran church in Glendale had a beautiful retreat called Lutherglen, but a flood destroyed all the retreat’s buildings. Los Angeles County passed an ordinance which prohibited any use of Lutherglen until further notice. The Lutheran church sought compensation, but the California courts demurred, stating that unless the temporary regulation was judicially found to be a taking, no monetary compensation could issue. And the courts were (apparently) of the view that property-owners could not be compensated for any period of time prior to such a judicial finding.

The Court ruled 6-3 that property owners must be compensated for the period of time preceding a judicial determination that a regulation amounts to a temporary taking. Rehnquist wrote for the majority, and he first had to establish that the Court could even announce such a rule in this particular case. He claimed that the California courts had assumed that the Lutherans had been deprived of a great deal of value through the regulation, and so the Supreme Court could assume so as well. Turning to the merits the case was simple. The takings clause was an absolute command that compensation be given; not a suggestion. Whether a taking was regulatory or temporary did not matter. And neither did the timing of a judicial determination either.

Who could dissent from such straightforward logic? Stevens, bien sûr! In parts joined by Blackmun and O’Connor, he argued that the California courts had not really left the case in such a posture that the Supreme Court could make the ruling it did, and also that there was no evidence that the Lutherans could not get compensation if they tried an alternate legal method of challenging the regulation. But then, he went on further, now alone. He actually argued that only physical temporary takings, as opposed to regulatory ones, should be amenable to monetary compensation. He thought compensation for temporary regulatory taking placed too much burden on governments, and that line drawing on what regulation went “too far” would be hard. Finally, the horror of all horrors, Stevens essentially admitted that he didn’t think any regulatory takings, no matter how financially ruinous to property owners, ought to be compensated. Cutting through his crap, he basically wanted the takings clause removed from the Constitution.

Although Stevens “respectfully dissent[ed],” his opinion was laced with lots of typical passive-aggressive insinuation. The Court’s decision “will generate a great deal of litigation,” he ominously intones to start off his opinion. The Court acted in a “dangerous way.” “It is hard to understand how appellant ever expected to rebuild Lutherglen,” he snottily declares. Stevens accused the bipartisan majority of having a “radical view.” He found the very concept of compensating property owners “utopian.” He airily stated that financial ruin for certain owners was merely a mildly unfortunate “inevitable byproduct.” He tut-tutted about the Court’s “loose cannon,” and loftily bemoaned that the majority had chosen not to take the “better part of valor.”

I don’t think there’s any Supreme Court Justice, past or present, who I personally loath as much as Stevens. One commenter on Althouse summed it up best: “He’s a little frickin’ dictator in a stupid bow tie.” If you want proof that he’s no friend of freedom, use this Big Brother loving opinion (especially the last section) as one of your lead exhibits.