Monthly Archives: August 2014

Citicorp Industrial Credit, Inc. v. Brock

483 U. S. 27

June 22, 1987

The Fair Labor Standards Act (FLSA) prohibited the sale or distribution of goods manufactured by a company which violated minimum wage laws. For many years, Citicorp underwrote a large clothing manufacturer, but that manufacturer ultimately failed in 1985. During the last month of production, the employees were not paid. The Department of Labor then took active steps to prevent Citicorp from attempting to place any of the products manufactured during this last month into commerce. Citicorp argued that a longstanding appeals court ruling exempted creditors from the general FLSA rule.

The Court ruled 7-2 that the FLSA non-distribution rule applied to creditors. Marshall showed that the text of the FLSA was clear and unambiguous. The law made two exceptions to its general rule, but neither one applied to Citicorp. He was unsympathetic to the claim that the FLSA’s rule was not intended to apply to creditors. To the contrary, the law’s purpose was to remove tainted goods from the market, and as to that purpose, it hardly mattered whether a manufacturer or a creditor did the distributing. Scalia’s brief concurrence grumbled about (what else?) the majority’s inquiry into the intent of Congress in passing the law.

Stevens dissented, and was joined by White. He did not see any evidence that Congress had intended the FLSA rule to apply to bankruptcy situations. Furthermore, the court of appeals rule exempting creditors, which the majority rejected, had stood unchallenged by either Congress or other courts for two decades. In light of all this practical, real world experience, Stevens did not believe it was appropriate for the Court to go ultra-textualist, and overturn the prevailing legal understanding of the FLSA.

This case illustrates the contrast between formalism and functionalism better than just about any other case all term. Formalism is frequently disruptive and painful, while the argument Stevens makes is undeniably seductive. In the end though, unswerving fidelity to the text better serves the long term good of a court and a nation. “And why do you break the commandment of God for the sake of your tradition?” – Matthew 15:3.


Ricketts v. Adamson

483 U. S. 1

June 22, 1987

In exchange for testifying against two co-defendants in a car bombing case, Adamson would be spared the death penalty. This understanding was formalized in a plea agreement. If Adamson ever refused to testify though, the the agreement would be voided, and he could be tried again. When the convictions of the co-defendants were reversed on appeal, Adamson was asked to testify at a retrial. Adamson stated his belief that testimony at retrial was not covered by the agreement. Nonetheless, the State of Arizona deemed Adamson in breach of the agreement. Accordingly, Adamson himself was retried, found guilty, and sentenced to death. He appealed on double jeopardy grounds.

The Court ruled 5-4 that double jeopardy did not pose a barrier to his new conviction. Justice White explained that the double jeopardy privilege could be waived in a plea agreement, and that Adamson’s plea agreement did just that. The lack of an explicit waiver provision was of no consequence, because the agreement own terms unequivocally presumed waiver. White was unsympathetic to the claim that Adamson believed he had not breached. Breach of plea agreements was a question for courts to decide, and White was loath to second guess the findings of the Arizona courts.

Brennan dissented, and was joined by Marshall, Blackmun, and Stevens. He hotly contended that the state had treated Adamson with gross unfairness. Adamson’s interpretation of the plea agreement was in fact quite reasonable textually – and one could argue that he was attempting to see the agreement honored rather than breached by adhering to his interpretation. More than that, even accepting Arizona’s construction of the agreement, Adamson still never breached it. At best, he had merely stated an intention to breach it. While double jeopardy could be waived by agreement, Brennan thought it could not be waived without intent, and Adamson clearly never intended through any of his actions to actually void the agreement. Adamson’s retrial was all the more unfair because the prosecutors decided to drop the retrial of his co-defendants right after the alleged breach.

This decision is a poignant example of what famed legal scholar John Hart Ely once called “The Wages of Crying Wolf.” Brennan and Marshall dissent so automatically in capital punishment cases that one might forgive the five more conservative Justices for ignoring their whines of unfairness in any given case. The problem is, Ricketts v. Adamson was one of those rare instance where the liberal cry of “Wolf!” should have been taken seriously. Adamson was flat out screwed by the prosecution, and one of the Justices from the majority should have been able to realize it. Why is it instead cases like Booth or Cruz where a conservative Justice defects?

Hewitt v. Helms

482 U. S. 755

June 19, 1987

Aaron Helms was put in solitary confinement based on suspicions that he helped stir up a prison riot. Helms felt the evidence relied upon by the prison officials was insufficient, and that he should have been given a hearing. Accordingly, he filed a 1983 suit against the prison. One federal court found a due process violation, but remanded the case for determination as to whether the prison officials had immunity. The lower court found immunity, and also held the case moot because Helms had since been released on parole. At this stage, Helms tried to recover attorney’s fees under Section 1988, on the theory that a due process violation had been found.

The Court ruled 5-4 that Helms could not take advantage of Section 1988. The law allowed attorney’s fees only for ‘prevailing parties’, and because Helms never got a single shred of actual relief for his alleged grievances, he did not qualify. Scalia’s majority opinion downplayed the significance of the due process ruling, noting that it gained Helms absolutely nothing in the end. One does not ‘prevail,’ Scalia said, merely because a court treats a single aspect of a petitioner’s overall case favorably. That the prison changed its rules afterward did not matter either, since Helms himself obtained nothing of value from this alteration. Ultimately, some direct redress of a claimed violation must occur before 1988 may be invoked.

Marshall dissented, and was joined by Brennan, Blackmun, and Stevens. He pointed out that no court ever disagreed with the finding of a due process violation. Even though immunity and mootness prevented remedial relief, the judicial declaration still stood that Helms had his legal rights infringed. Furthermore, Marshall argued that the prison’s rule change did benefit Helms, because he was actually back in prison by the time the case reached the Supreme Court. Marshall’s dissent tries hard, but I must side with Scalia on this one. The line had to be drawn somewhere, and the dissenters stretched the term ‘prevailing’ way too far.

Kentucky v. Stincer

482 U. S. 730

June 19, 1987

Sergio Stincer raped two elementary school age girls. At trial, the judge interviewed the girls out of Stincer’s presence to determine if they were competent to testify. Stincer protested that this abridged his Sixth Amendment right to confrontation, as well as his right to Due Process.

Blackmun wrote for a 6-3 majority. He said that confrontation’s chief purpose was cross-examination. Stincer had a full opportunity to cross examine the girls afterward on the same subject matter that the judge talked to them about. Blackmun found it significant that the competency hearing did not touch any of the substantive matters of the case, and only determined if the girls had the capability of telling truth. Because of the innocuous nature of the questions asked at competency hearing, the majority also declined to find a Due Process violation.

Mashall wrote a dissent joined by Brennan and Stevens. He posited that the confrontation clause encompassed more than cross-examination – it was a general right to be face-to-face with a witness at all relevant times. Marshall also pointed out how exclusion cost a defendant the opportunity to flag factual errors uttered by the witness at a competency hearing. Finally, since a competency hearing makes or breaks the prosecution’s entire case, the dissent stated that Due Process required the defendant’s presence.

I can’t deny it – Marshall made some very strong arguments, and I probably lean toward his side. But I don’t want a man who rapes little girls to go free. This sort of Constitutional violation should not be enough to reverse a conviction. It’s elementary logic and justice that a remedy should be proportional to the harm it addresses, and it’s high time the Supreme Court finally learned that lesson.

New York v. Burger

482 U. S. 691

June 19, 1987

A New York law allowed policemen to show up unannounced at auto junkyards and search around for stolen property, all without a warrant. Several stolen cars were found in Burger’s junkyard, and he moved to suppress the evidence on the grounds that the search was unconstitutional. New York characterized the search as administrative rather than criminal, and in line with other routine searches of closely regulated industries. Burger thought the searches were nothing but clever ways to get around the warrant requirement.

The Court ruled 6-3 that New York’s search scheme was Constitutional. Blackmun said in his majority opinion that junkyards were extensively regulated by the states, and that the businesses thus had a low expectation of privacy. Given how epidemic auto theft had become, Blackmun also thought that the law served an important need, and did so in an appropriate fashion. Furthermore, the law was narrow enough as to not constitute a blank check. Finally, he turned to the claim that the law was a criminal search authorization in disguise. Blackmun opined that the act had a legitimate administrative purpose: insuring that auto junkyards were not covert dumping grounds for stolen property. That this administrative purpose overlapped with a penal purpose did not matter.

Brennan, joined by Marshall and O’Connor, dissented. He showed that junkyards were not really that widely regulated. If “closely regulated” industries included junkyards, Brennan thought, then practically no commercial enterprise had much privacy protection at all. He further found the statute’s search authorization almost limitless; police could search a junkyard as thoroughly and as often as they wanted, without any need for justification. Finally, in a section not joined by O’Connor, Brennan showed the essentially criminal nature of the searches. He cited precedents standing for the proposition that administrative searches were not to be used to discover criminal misconduct. In Burger’s own case, the police had gone far beyond what was necessary for the administrative scheme, thus proving Brennan’s point.

Every once in a while, a case comes along where the Brennan and Marshall team totally gets it right. I would have unreservedly joined the entire dissent. The majority opinion practically eviscerates the Fourth Amendment with respect to businesses. Addressing car theft is an important interest, but the provisions of the Constitution must be given more than lipservice.

Goodman v. Lukens Steel Co.

482 U. S. 656

June 19, 1987

Several black workers in a steel factory felt repeatedly discriminated against, and so they sued under the Civil Rights Act, and Section 1981. They sued not only the company, but also their union, on the theory that the union’s failure to stand up and fight for their rights was also discrimination. A dispute arose as to whether the statute of limitations for the suit was six years as provided by a Pennsylvania law, or the two years allowed for 1983 suits.

The Court ruled 6-3 that the Section 1983 time limit of two years should be followed. White said that a uniform national time limit was needed, and that 1981 violations were more analogous to personal injuries than economic and contractual harms (which would merit a far longer statute of limitations). White thought this limitation could be applied retroactively to the plaintiffs, since there was no other limit with enough judicial recognition to merit reliance. A completely different alignment of Justices then ruled 6-3 that the union was guilty of discriminating against the black workers. The union did nothing affirmatively, but the very act of refusing to fight for the black employees in case after case after case ultimately added up to sufficient discrimination for liability under the laws. Rehnquist and Stevens assented to White’s opinion in full.

Brennan, joined by Marshall and Blackmun, dissented from the statute of limitations holding. He reviewed the purpose, background, and legislative history of Section 1981 at length, and concluded that protection against economic injuries was at its heart. Brennan further observed that the kind of activity which the section banned had a tendency to take place over long periods of time, in marked contrast to usually discrete violations of Section 1983. All three Justices agreed wholeheartedly with the holding that the union had discriminated.

Powell, joined by O’Connor and Scalia, had precisely the opposite opinion. He agreed with the statute of limitations holding, but dissented from the discrimination holding. After extensively reviewing the evidence, he concluded that the union had acceptable neutral reasons for not pursuing most of the grievances alleged by the black employees. Powell felt that actual discriminatory intent, and not disparate treatment alone, was required to make a finding of liability. He wrapped up by arguing that imposing a positive duty on unions to address racial grievances would encourage frivolous litigation, and was thus unwise as a policy matter. In a brief concurrence, O’Connor said that she was troubled by the two year limitation, and the retroactivity analysis, but ultimately accepted the Court’s holding on those issues anyway.

What bloc was most correct legally? After reading all the opinions, I have to go with the one combination that no Justice took: Brennan was right about the statute of limitations, but Powell was right about the finding of discrimination. In terms of voting records, this case is fascinating because it represents a rare instance of Brennan and Marshall actually voting against a union. Most disturbing of all though, this case is yet another instance of a union not caring about employee welfare as much as it claims to (see Hechler for an even more cynical example).

Frazier v. Heebe

482 U. S. 641

June 19, 1987

David Frazier both lived and operated a law office in Mississippi, but he also wanted to practice law in Louisiana. The District Court for Louisiana’s Eastern District denied him admission to the bar. It did so on the basis of Court rules which limited the bar to those with a residence or law office in the state. This rule was based on the desire to have lawyers most familiar with Louisiana law, and to allow lawyers to be called to court on short notice. Frazier contended that the rule violated several Constitutional provisions.

The Supreme Court overturned the District Court’s rule in a 6-3 vote. Brennan wrote for the majority, and declared that the Supreme Court had the power to invalidate any rule from a lower federal court deemed to be unfair and irrational. Because Frazier had been admitted to the Louisiana bar, and because Louisianans who lived much farther away from the courthouse than Frazier could practice before the District Court, Brennan felt that the rule did not have adequate justifications. In sum, the Court held that no federal court could make residence or law office locale a justification for refused admission.

Rehnquist, joined by O’Connor and Scalia, dissented. As he explained, the majority simply invented out of nowhere a supervisory power to review and overturn all lower court rules. To the contrary, it was generally accepted that lower courts had broad and final power to set membership qualifications. Although existing statutes and court rules enabled the Supreme Court to declare lower court rules unconstitutional or inconsistent with nationwide rules, absolutely nothing authorized the Court to unilaterally abrogate a rule merely because a majority found it silly or irrational.

This is one of the more brazenly activist decisions I can remember during the term. Very sad to see Powell and White going along with this naked power grab. Truth be told, the district court’s rule strikes me as fairly reasonable, and overturning it based on its alleged irrationality seems practically Lochneresque.

Edwards v. Aguillard

482 U. S. 578

June 19, 1987

In 1981, Louisiana passed a law requiring creation science to be taught whenever evolution was taught in public school science classes. The state legislature said that this law’s purpose was preserving academic freedom. Immediately, a federal court enjoined the act’s enforcement, on the theory that it had no valid secular purpose, and thus violated the establishment clause’s Lemon test.

The Court ruled 7-2 that Louisiana’s law was unconstitutional. Brennan wrote the majority opinion, which stressed the particular importance of keeping religion out of public schools. Turning to the act’s alleged purpose of academic freedom, he declared it a sham. By forcing educators to either avoid teaching evolution or teach it alongside creation science, the act notably constricted rather than expanded academic freedom. Brennan then reviewed some statement’s of the law’s sponsor and leading proponents, and surmised that the law was really intended to bring God into school, and to discredit evolution on the basis of Christian opposition. To conclude, he defended the lower court’s decision to issue summary judgment without a trial, claiming that the law’s unconstitutionality was plain and undeniable.

Powell, joined by O’Connor, concurred, and gave some additional snippets from legislative history which illustrated the plainly religious motivations and doctrines at the heart of ‘creation science.’ Then, in a feeble attempt to play good cop, he added a few paragraphs about how schools could still teach about religion in certain appropriate contexts. White concurred in judgment. Two lower courts with Louisianans as judges had found a religious purpose, and White did not feel it was the Supreme Court’s place to second guess their interpretation. And then there was the Scalia dissent, which was joined by Rehnquist.

Scalia’s dissent is a dazzling tour de force which cannot be done full justice in only a few sentences. He first reviewed Lemon precedents to show that a pro-religious motivation does not automatically make a law unconstitutional. Next, he reviewed the legislative history in excruciating detail, and proved that Louisiana legislators could conceivably have believed that the law’s purpose was totally secular. Parsing the record further, Scalia explained that the “academic freedom” justification simply meant that students ought to be able to hear the pros and cons of evolution, and be given the ability to make up their own minds on the issue. Finally, Scalia lambasted the Lemon test’s purpose inquiry, arguing that discerning a law’s objective purpose was impossible. He demonstrated that no reliable or principled method existed to ascertain the actual purposes in the heads of state legislators.

This last section is an absolute joy to read. I wish I could quote more of it, but here’s one of the best bits: “If a state senate approves a bill by vote of 26 to 25, and only one of the 26 intended solely to advance religion, is the law unconstitutional? What if 13 of the 26 had that intent? What if 3 of the 26 had the impermissible intent, but 3 of the 25 voting against the bill were motivated by religious hostility or were simply attempting to “balance” the votes of their impermissibly motivated colleagues? Or is it possible that the intent of the bill’s sponsor is alone enough to invalidate it – on a theory, perhaps, that even though everyone else’s intent was pure, what they produced was the fruit of a forbidden tree?”

Edwards v. Aguillard is probably the most well remembered case from 1987; justly so too, for what a national education system teaches children about the origins of mankind is of foundational and paramount importance. Scalia was correct that the majority acted prematurely in finding a religious purpose. Nonetheless, despite Scalia’s valiant legalistic defense, I must admit as a realistic matter that the law almost certainly was religious at heart. Simply stated, Louisiana wanted God in schools. America’s legal ruling class wanted Him out.

As great theologians throughout history have pointed out, the concept of ‘neutrality’ is largely a mirage. To quote Christ, “he who is not with Me is against Me; and he who does not gather with Me scatters.” When schools teach non-theistic evolution as the origin of mankind, they are not neutral toward Christianity – they oppose it. Abraham Kuyper, a Dutch Prime Minister from the early 1900s, was one of the first politicians to figure this out. He knew that public schools were not religiously neutral, but inherently anti-theistic, and accordingly advocated for government funding of religious schools in the interest of fairness.

Justice Hugo Black actually grasped much of this logic back in 1968, when he dissented from the Court’s decision that states could not ban the teaching of evolution. He wrote “If the theory is considered anti-religious, as the Court indicates, how can the State be bound by the Federal Constitution to permit its teachers to advocate such an “anti-religious” doctrine to school children? The very cases cited by the Court as supporting its conclusion hold that the State must be neutral, not favoring one religious or anti-religious view over another. The Darwinian theory is said to challenge the Bible’s story of creation; so, too, have some of those who believe in the Bible, along with many others, challenged the Darwinian theory. Since there is no indication that the literal Biblical doctrine of the origin of man is included in the curriculum of Arkansas schools, does not the removal of the subject of evolution leave the State in a neutral position toward these supposedly competing religious and anti-religious doctrines?”

One great irony of the case is that the Louisiana legislature was not actually honoring God. God merits preeminence, but Louisiana was only willing to give Him equal time. The law was like ancient Israel declaring that they would equally celebrate both God and Ba’al. The American culture of pluralism is so strong that not even the devout Baptists and Catholics of Louisiana dared to recognize God’s dominion. So long as the establishment clause exists, Christians will never be able to completely live out their faith. As Kuyper explained, God is sovereign over absolutely everything – politics included. A faithful Christian cannot leave behind their allegiance to God in the voting booth, or in the statehouse. A faithful Christian cannot simply turn off his or her faith while deciding what laws to pass. But as Justice Brennan makes clear, this is precisely what the establishment clause directs Christians to do.

Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc.

482 U. S. 569

June 15, 1987

At LAX airport, which is owned by the city of Los Angeles, a resolution was passed which banned all “First Amendment activities” in the airport terminal. It was drafted in response to groups like Jews for Jesus, who often distributed literature to travelers coming or going. Jews for Jesus argued, rather sensibly, that a resolution banning all First Amendment activity probably violated the First Amendment. One important question was whether an airport terminal should be considered a public or nonpublic forum.

O’Connor wrote for a unanimous Court, and concluded that no matter what type of forum the airport was, the resolution remained unconstitutionally overbroad. Read literally, she noted that the resolution would ban passengers from wearing shirts with writing on them, or even from talking while they walked through the terminal. Furthermore, she pointed out that there was no obvious other way to read the text of the resolution. O’Connor brushed aside the airport’s pathetic attempt to explain that it only banned activity that wasn’t “airport related,” observing that this proposed saving construction was laughably vague. White, joined by Rehnquist, grumbled in a brief concurrence that the Court should have decided whether an airport was a public or non-public forum.

This case is notable for marking Jay Alan Sekulow’s debut before the Supreme Court. As a Messianic Jew himself, winning this case unanimously must have felt especially gratifying. Incidentally, I have found that the most important and foundational truths are quite often the very things worldly governments are most eager to ban. Here, the distinctly Jewish message of God’s saving gospel was the object of zealous censorship. The very next case in United States ReportsEdwards v. Aguillard – might possibly be an even better example. The maniacal intensity that federal judges display in their quest to keep children from learning about creation only serves to underscore and illustrate creation’s indelible significance and centrality.

Société Nationale Industrielle Aérospatiale v. United States Dist. Court for Southern Dist. of Iowa

482 U. S. 522

June 15, 1987

A French manufactured plane crashed in Iowa, and the inevitable lawsuit ensued. The District Court tried to order extensive discovery over in France under the Federal Rules of Civil Procedure. The French argued that the Court was obliged to follow the procedures in the Hague Convention, a multi-lateral treaty prescribing common rules for evidence gathering in international disputes. The District Court held that, since the French submitted to the court’s jurisdiction, the Hague Convention did not even apply.

The Supreme Court ruled 5-4 that the District Court could use the Federal Rules rather than the Hague Convention. Justice Stevens wrote the majority opinion, which examined the Convention and found its language clearly permissive rather than mandatory. Using the same textual analysis, Stevens also rejected the claim that the Hague Convention did not apply at all, and showed that any evidence to be collected abroad was within the treaty’s reach. Nonetheless, the majority opinion rejected the idea that the Hague Convention should always be resorted to first, before using the Federal Rules. Stevens pointed out that some Convention procedures were unwieldy and time consuming, and suggested that allowing national rules to be used in the first instance was consistent with the ideal of international comity. He concluded that courts should make case specific determinations as to which procedures would work best.

Blackmun dissented, and was joined by Brennan, Marshall, and O’Connor. While he recognized the permissive rather than mandatory language of the treaty, he felt the Convention should be used first. He thought courts were ill-equipped to decide which set of rules would work best, and did not think comity was well served by ignoring a major multi-lateral convention. The dissent also showed that the majority had greatly exaggerated the inconvenience and uncertainty of using Hague processes, and that there were informal means of securing evidence under the Convention which operated quickly and efficiently. More broadly, Blackmun bemoaned the majority’s seeming aversion to international co-operation, common ground, and reciprocity.

This is another one of those cases where I am not certain which side is correct legally, but I definitely know which side I prefer politically. As far as I am concerned, the less international law the better. Global co-operation and collaboration rarely leads to anything helpful or godly (three words: Tower of Babel).