Monthly Archives: October 2014

Puerto Rico v. Branstad

483 U. S. 219

June 23, 1987

While in Puerto Rico, Ronald Calder killed a woman and her unborn baby by running his car over them. After promising not to leave before trial, Calder fled to Iowa and successfully convinced the governor to block his extradition (Fun fact! Terry Branstad is still Governor of Iowa nearly three decades later). Puerto Rico said that federal law gave Iowa no right to refuse an extradition request, but a Supreme Court case from 1861 called Dennison held, on the grounds of federalism and states rights, that federal courts had no constitutional power to enforce extradition when a state refused.

Unanimously, the Court ordered Iowa to hand over Calder under the federal law. Marshall wrote the decision, which unceremoniously overruled Dennison. Its extreme states rights logic had not been followed by the Court in other contexts in the ensuing century, and there was no reason why extradition should continue remain an exception. As an aside, Marshall noted that the extradition clause of the Constitution itself imposed a mandatory, non-discretionary duty. While the extradition clause arguably did not apply to Puerto Rico, a territory, the federal law included territories by its express terms. O’Connor, joined by Powell, declined to join the aside about the extradition clause, finding it unnecessary. Scalia concurred in judgment. He blandly noted that the extradition law could potentially be unconstitutional, but abstained from exploring the possibility further because no party had argued it.

Probably the most interesting aspect of this case is Justice Marshall’s casual use of the words “unborn child” to describe one of Calder’s victims. No insistent use of terminology like ‘fetus’ or ‘product of conception’ here! Neither is there an evasive declaration that “[w]e need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” No – here in this case, Marshall and company accidentally let the mask slip, and told the truth.

And that is the most horrifying thing of all: despite professed agnosticism elsewhere, Marshall and the other Justices actually do understand completely that a baby is killed by abortion. “Woe to those who call evil good, and good evil; who substitute darkness for light, and light for darkness” – Isaiah 5:20.


South Dakota v. Dole

483 U. S. 203

June 23, 1987

The 21st Amendment apparently gave states the exclusive right to legislate on the subject of alcohol. Then, along came Congress with a law that stripped states of significant highway funds unless the drinking age was made 21. South Dakota, which had a drinking age of 19, challenged this as an indirect means of destroying the 21st Amendment’s principles.

Rehnquist wrote for a 7-2 majority. The spending clause of Article I allowed Congress to place conditions on receipt of funds as long as those conditions were for the general welfare, and reasonably related to the spending. Because preventing drunk driving on roads met these conditions, there was no problem. As for the 21st Amendment, Rehnquist said that unless a condition actually required states to violate the Constitution, indirect accomplishment of an otherwise illegitimate goal was fine. Finally, he rejected South Dakota’s claim of undue coercion, noting that only 5% of funds would be lost for failure to change the drinking age.

Brennan, without elaboration, said that the 21st Amendment did prohibit Congress from interfering indirectly, and dissented. O’Connor’s more lengthy dissent sharply criticized the notion that drinking ages were ‘reasonably related’ to highway construction. The condition was only tangentially related to the spending, and was also wildly under-inclusive, given that most drunk drivers are over 21 anyway. Under the Court’s logic, said O’Connor, Congress could require a state to choose a capital city closer to the interstate or lose funding.

Though only 14 pages long, and little noticed at the time, this case would gradually come to symbolize everything that is wrong with federalism today. As one scholar memorably put it, Dole was the case that declared states to be mere puppets on the strings of the national government. The only thing wrong with O’Connor’s dissent is that it doesn’t go nearly far enough. It accepted without question five decades of encroachment on states rights, and objected to the holding only on the narrow ‘reasonably related’ grounds. There’s a long way to go yet before federalism and enumerated powers start to mean anything again.

Bourjaily v. United States

483 U. S. 171

June 23, 1987

An undercover FBI agent made plans to sell cocaine to Lonardo, who in turn was to pass on the drug to Bourjaily. Both Lonardo and Bourjaily were arrested when the transfer took place, as planned, in a hotel parking lot. Bourjaily then objected to the admission as evidence of an inculpatory recorded telephone conversation between Lonardo and the FBI agent on the grounds of hearsay. The prosecutors argued that statements made in furtherance of a conspiracy were not hearsay under 801(d)(2)(E) of the Federal Rules of Evidence. The ultimate question was whether the recorded conversation itself could be used to prove the existence of a conspiracy.

The Court ruled 6-3 that the telephone conversation could be used to establish conspiracy, and that its subsequent admission was not hearsay. Rehnquist, who wrote the opinion, distinguished a 1942 case called Glasser, which seemed to suggest that conspiracy could only be established by evidence independent of the alleged hearsay. To the contrary, the alleged hearsay could work with independent evidence to establish a conspiracy, and this by a mere preponderance of the evidence.  Rehnquist found it conclusive that another rule, 104(a), said that these sorts of preliminary determinations could be made without use of the ordinary rules of evidence. The Court also rejected Bourjaily’s claim that he had the right to confront Lonardo at trial, and cited recent precedent holding that no confrontation was required when testimony against the accused fell within a “firmly rooted hearsay exception.”

Stevens said in concurrence that Glasser, despite interpretations to the contrary, had never been intended to mean that only independent evidence could be used to determine conspiracy. Blackmun, joined by Brennan and Marshall, disagreed, and further pressed that the conspiracy exception was rooted in agency law (i.e., because conspirators are united in a cause, a statement by one is a statement by all). Somehow (I don’t quite follow the logic), the agency justification meant the plain meaning of 104(a) didn’t apply. Blackmun continued that conspirator statements could easily be overinterpreted, or blown out of proportion, and that the independent evidence requirement is an important safeguard. Finally, he thought there was a confrontation clause violation. Because the Court abandoned the traditional interpretation of the Glasser rule in its decision, they had no business saying that admission of conspiracy evidence was a “firmly rooted” hearsay exception.

Call me obtuse, but I’ve never really understood why hearsay is so diabolical and verboten. In general, I think the good outweighs the bad, and that judges and juries can usually take out-of-court statements for what they are. Blackmun’s arguments regarding agency are hard to understand, but even if he’s correct, I can’t say I shed any tears.