Monthly Archives: February 2015

Greer v. Miller

483 U. S. 756

June 26, 1987

While on trial for murder with two other defendants, Charles Miller testified that he had not been a part of the murder, but was merely told about it afterward. The prosecutor asked why Miller had never made this claim prior to trial. This question was overruled by the judge, because under Doyle v. Ohio, post-Miranda silence cannot be used against a defendant at trial. After conviction, Miller argued that the prosecutor’s question was a non-harmless Doyle violation that required overturning the trial verdict.

The Supreme Court ruled 5-4 that no Doyle violation had occurred, and that regardless, the prosecutor’s question was harmless error. Powell said that Doyle violations only occurred when questioning silence was allowed, not when it was immediately overruled and never mentioned again. While asking the question was improper, it was only a few seconds in an extensive trial, and the Illinois Supreme Court had concluded that it did not constitute harmful error. Following their lead, Powell held that the prosecutor’s error was harmless.

Stevens said that commenting on postMiranda silence is still a Doyle violation, even if immediately overruled by a judge. He also thought this error was not harmless. But because the case was before the Court on collateral, rather than direct review, Stevens thought the Court should refrain from voiding the conviction. Brennan, joined by Marshall and Blackmun, railed at length about how harmful even a brief and overruled question about silence could be to a defendant’s case. He concluded that a Doyle violation had clearly occurred. Strangely, Brennan didn’t even address the harmless error issue (it was the last day of the term – my guess is that he simply ran out of time).

The majority got it right. We shouldn’t be making mountains out of molehills. Voiding a conviction over an overruled five second question is asinine. But what most struck me about the case was how terrible the Stevens concurrence is. Whether a conviction stands or not shouldn’t depend on the arcane direct v. collateral distinction! If a conviction shouldn’t have happened, it shouldn’t stand – period.


Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air

483 U. S. 711

June 26, 1987

After several years of legal wrangling, a group of annoying environmentalist busybodies forced Pennsylvania to take some green measures. Lawyers for the Council had worked on a contingent basis, and after victory, the court granted the Council attorney fees. The court tried to adjust the amount of fees dramatically upward to reflect the risky and contingent nature of the litigation. Pennsylvania protested that this upward adjustment was not within the court’s discretion.

The Court unanimously vacated the lower court’s fee award, but broke into three blocs about what to do next. White, also writing for Rehnquist, Powell, and Scalia, said that no adjustments should be allowed. Computation of fees already took into account lengthiness and difficulty of the litigation. Furthermore, deciding what cases are “risky” is totally arbitrary. Finally, the adjustment system would unfairly punish parties who lost very legally strong cases. White concluded by questioning whether the lawsuit even involved as much risk as was claimed, and said that in any event the upward adjustments were far too high.

Blackmun, joined by Brennan, Marshall, and Stevens, said that court-awarded contingency fees needed to be at least roughly equal to fees in the overall legal marketplace; otherwise, many good cases will never attract counsel. Blackmun then tried to explain how upward adjustment could be done in a fair and arbitrary manner that avoided most of the plurality’s doubts and what-ifs. He felt courts could come up with appropriate multipliers. Nonetheless, he still felt the factual record was underdeveloped, and thought the lower court should start from scratch in determining the appropriate amount of fees.

O’Connor’s opinion is an infuriating attempt to split the baby. She agreed with Blackmun that upward adjustment was sometimes necessary, and that having the fees be competitive with the general marketplace was of great importance. She agreed with White that multipliers should not be used, that “risk” should not be considered, and that some concerns about arbitrariness were well founded.

This case was argued twice, and it still failed to receive a half-decent conclusion. O’Connor should have picked a side. Her hemming and hawing only makes for more judicial headaches. I pity the poor judge who had to deal with this case on remand. With regard to the merits, I can only say that I’m in favor of anything that cuts down on massive attorney fees.

United States v. Stanley

483 U. S. 669

June 25, 1987

While in the Army, James Stanley was involuntarily given large quantities of LSD to study the drug’s effect on humans. It had an effect all right: his life was destroyed. He attempted to sue the army officials who had done this, under both the Federal Tort Claims Act (FTCA), and under the Bivens doctrine, which allowed for redress against government agents in some circumstances. The government argued that the need for military discipline was an interest important enough to foreclose any Bivens claim for military-related matters.

The Court unanimously rejected Stanley’s FTCA claim on some ticky-tacky procedural grounds. Then, with Scalia writing, it rejected his Bivens claim 5-4. There were indeed ‘special factors’ in military life that counseled against allowing Bivens suits. The Constitution gave Congress extensive power to control the military, and military discipline would fall apart if everything could be second guessed in court. For these reasons, Scalia said that the FTCA ‘incident to service’ test established in Johnson should be adopted in the Bivens realm as well.

Brennan, joined by Marshall, began his dissent by pointing out that no less an authority than the Nuremberg Tribunal had condemned involuntary scientific testing in the strongest terms. He then observed that Bivens liability judgments were almost analytically identical to immunity judgments. Brennan argued that the military had never been granted absolute immunity in other legal contexts, and thus total shielding from Bivens was inappropriate. He also showed that the Court’s new rule was ahistorical. In a section joined by Stevens, Brennan found the worries about military discipline overblown, and criticized the majority for blindly adopted the FTCA standard. In a brief dissent of her own, O’Connor expressed agreement with the majority’s interpretative framework, but claimed that LSD experimentation could not legitimately be considered ‘incident to service.’

I seem to have hit a long string of cases where either Brennan or Stevens hits it out of the park in dissent. Hope it doesn’t last much longer! Favorite quote: “I cannot comprehend a policy judgment that frees all federal officials from any doubt that they may intentionally, and in bad faith, violate the constitutional rights of those serving in the Armed Forces.” As I said in the last case, I really hate governmental immunity, especially when people like Stanley have had their lives ruined.

As a side note, this is one of the many reasons why I have no desire to ever be a part of the military. When you join the military, you place yourself under the authority of superiors who have as great a capacity for evil as for good. And quite often, as Stanley’s case and countless other incidents show, the capacity for evil gets exercised.

Anderson v. Creighton

483 U. S. 635

June 25, 1987

Officer Anderson made a warrantless search of the Creighton house in pursuit of a bank robber, but the search was fruitless. The Creighton family wanted to sue Anderson for violation of the Fourth Amendment, but Anderson claimed he had immunity from lawsuits under the Harlow principle, which barred suits when the legality or illegality of an action wasn’t firmly established.

The Court ruled 6-3 that Anderson could claim immunity. Scalia first rehearsed the government’s interest in not being bogged down by time-consuming suits against it. He then said that federal officers could obtain immunity as a matter of law when they could have reasonably believed that the search was valid. Scalia was not moved by the linguistic argument that “unreasonable searches and seizures,” to quote the Fourth Amendment, could never be considered “reasonable” for immunity purposes. Neither did he have much use for some arguments from British Common Law, observing that American Common Law had simply gone in a different direction. Thus, on remand, Anderson was free to argue that exigent circumstances were sufficient to create a reasonable belief of the warantless search’s validity.

The Stevens dissent, joined by Brennan and Marshall, began by positing that the Harlow immunity applies only when legal standards and doctrines are themselves undefined. In this case, the question was only whether Anderson had complied with well-established legal standards. The Harlow doctrine was meant to shield high level government officials in uncharted water; it was not meant to give policemen broad immunity when they violated the Fourth Amendment. Stevens felt that there should not be two different standards for search reasonability – the Constitutional one, and the looser immunity one. He closed by stressing the importance of protecting the privacy rights of ordinary Americans.

What swayed me most was Footnote 21 in the dissent, which described the search. If its description is true, Officer Anderson acted atrociously, and deserves every punishment he can get. But more than than, I really I hate governmental immunities that are not available to everyday citizens. No ordinary criminal defendant can argue that he was reasonably mistaken about the law. Why are they held to a higher standard of legal acumen than policemen? No one should be above the law, least of all government officials.

Bowen v. Gilliard

483 U. S. 587

June 25, 1987

To simplify things things slightly, a 1984 law had altered welfare, so that the amount of welfare money a family would receive was reduced according to how much money that family received in child support payments. Obviously, this meant that many poor families had their overall incomes reduced. Gilliard, a mother of seven, contended that the new law violated both Due Process, and the Fifth Amendment’s takings clause, as it created undue coercion on families to make hard choices, and deprived individual children of their untrammeled right to child support.

The Court, with Stevens writing, upheld the law 6-3. When deciding how to spend money, Congress had broad discretion, and the desire to save millions of tax dollars was a rational reason for altering welfare. That the law sometimes affected family living arrangements did not subject it to higher scrutiny, so there was no Due Process violation. Stevens held it was not a taking either. Although the accounting had some confusing labels, the child support still belonged to the child. Moreover, neither welfare nor child support was an inalienable right under the Constitution, and each one individually was generally accepted to be liable to alteration through law. While the law could sometimes be harsh, it was the job of Congress to change it, not the courts.

Brennan’s dissent, joined by Marshall, largely talked past the majority opinion. Picking up on his theme in Rivera regarding the importance of parent-child relationships, he lambasted the law because under its accounting process, the child support money was designated as “state” money. Because the state rather than the parent was now the ‘official’ dispenser of the cash, Brennan argued that the law essentially severed the parent-child bond. He then recounted sob stories of a father who stopped paying child support after the law’s passage, and a child who went to live with her father so her mother and siblings could better share welfare money. Brennan could not stomach a law which caused families to make these sorts of gut-wrenching decisions.

Toward the end of his opinion, Brennan offered a detailed description of a potential welfare law that he would deem Constitutional. In one of the most transparent lies all year, he added that his prescriptions did “not represent an effort to second-guess Congress as to the most effective use of its funds, nor does it represent a threat to the discretion that program officials must inevitably exercise.” Blackmun said in his dissent that he mostly agreed with Brennan’s arguments.

This, by far, was the most depressing case of the entire term. Your heart has to break for all of the children in impoverished single parent homes. It’s hard to take Brennan’s angry moralizing about the poor children seriously though, because it was liberals like him who put so many million innocent children in these terrible situations in the first place. It was liberals like him who worked feverishly to destigmatize divorce, fornication, single parenthood, and monogamy. They remained silent in the face of the mass resulting family destruction, and then belatedly spoke up only when the government didn’t provide as much aid as it probably should have in the brutal aftermath.

Rivera v. Minnich

483 U. S. 574

June 25, 1987

Gregory Rivera was the alleged father of Jean Marie Minnich’s baby. When Minnich sought to establish his paternity in court, Rivera protested that the ‘preponderance of the evidence’ standard (i.e. more likely than not) was far too low. In a case called Santosky, the Supreme Court had held, on the basis of the Due Process clause, that parental rights could only be terminated upon the showing of ‘clear and convincing evidence’ – a much higher standard. Rivera argued that the standard for establishing paternity should be the same as that for ending it.

The Court ruled 8-1 that ‘preponderance of the evidence’ was an acceptable standard. Stevens emphasized that most states used that standard to establish paternity, and accordingly the Court should be wary of demanding a higher standard. He also rejected the claim that Santosky required legal symmetry in the burden of proof. Destroying the parent-child relationship is an extraordinary step, since it interferes with a familial bond of paramount importance. Requiring a father to own up to a familial bond which has already been created was very different in character. Stevens also said that the low proof standard was necessary to protect the interests of the mother and child.

O’Connor concurred in judgment – she had disagreed even with Santosky’s imposition of the ‘clear and convicing’ standard for termination. Brennan was the lonely dissenter. The financial consequences of paternity were so profound, and the penalties for shirking them so severe, that he felt a higher standard of proof was warranted. Furthermore, Brennan pointed out that parenthood possesses ineffable moral and emotional dimensions. Such an important relationship should not be formed based on mere 51%-49% probability. He concluded by observing that lying does occur in contested paternity suits, and that existing technology to determine parenthood was now 99% accurate.

Despite its brevity, and its surprisingly restrained dissent, this is easily one of the worst decisions of the entire term. Brennan was totally right, and he should have been far more forceful (Digression: for four pages in United States Reports, we saw the rarest of all sights – William Brennan actually acting like a Roman Catholic. Passenger Pigeon sightings may or may not be more common). Parenthood is far too important to play probability games with, especially when technology can now provide definitive answers. Quite apart from the rights of the alleged father, a child ought to have the right to know for certain that the man the legal system calls his father truly is so.

San Francisco Arts & Athletics, Inc. v. United States Olympic Comm.

483 U. S. 522

June 25, 1987

The Amateur Sports Act gave the United States Olympic Committee (USOC) an ultra-strong tradmark in the word “Olympic.” Anyone wishing to use the word would have to get permission from the USOC first, even if the usage would not be confusing, as is usually required for a trademark violation. The Special Olympics was one organization which got proper permission from the USOC. But when a San Francisco group tried to get authorization to call an event the “Gay Olympic Games,” the USOC took exception. The San Francisco groups sued, citing First Amendment concerns.

The Court ruled 5-4 that the USOC was in the clear. Powell first answered the objection that the law did not dispense with the confusion requirement; a quick look at legislative history proved otherwise. Turning to the First Amendment, Powell said “Olympic” was not too generic to merit protection, since the modern Olympics were such a universally recognized and understood phenomenon. Since 1896, a clear and unique secondary meaning had developed. Powell further held that the special distinctiveness of the Olympic games could justify the super-strong nature of the trademark. All of this was a 7-2 decision – in the final 5-4 section, the Court held that the government had not discriminated, because the USOC made the calls, and it was a private organization.

Brennan and Marshall dissented from the entire ruling. Brennan disagreed that the USOC was not really a government entity. At the Olypmics, it effectively functioned as a representative agent of the government. Furthermore, the Amateur Sports Act had required the USOC to put a number of important provisions in its charter, and mandated that the USOC provide reports to Congress. Finally, the USOC received a massive amount of government funding. “It would certainly be “irony amounting to grave injustice” if, to finance the team that is to represent the virtues of our political system, the USOC were free to employ Government-created economic leverage to prohibit political speech.” O’Connor, in an opinion joined by Blackmun, said she largely agreed with these arguments, and would have required a remand.

Brennan went further, finding the entire act unconstitutional. It was overbroad, because it prohibited even non-commercial expressive speech without providing good reasons for this vast reach. Moreover, there was no other good word left to convey certain expressive messages. “[A] title such as “The Best and Most Accomplished Amateur Gay Athletes Competition” would not serve as an adequate translation.” The USOC’s rejection of the San Francisco group was indeed viewpoint discrimination. And finally, the government had offered no compelling reason for making this one particular trademark super strong.

This decision was an {censored}-sized blunder. You know the intellectual property law is messed up when it has me agreeing with every word in a Brennan opinion, and even quoting it twice! The hubris and selfishness shown by the USOC is large enough to win an {censored} gold medal. The greatest irony of all is that the USOC and the IOC acquired the word “Olympic” by blatant theft in the first place. The word properly belongs to the Greeks. I’m not one to indulge in oppression {censored}, but I’d say Greece has a pretty legitimate grievance.

Welch v. Texas Dept. of Highways and Public Transp.

483 U. S. 468

June 25, 1987

Jean Welch, while working for the State of Texas, was injured on a ferry dock. She tried to sue Texas in admiralty law under a federal tort claim statute called the Jones Act. Texas protested that being sued violated the state’s sovereign immunity under the Eleventh Amendment. The Supreme Court had decided a century ago inĀ Hans that sovereign immunity could protect a state from being sued by its own citizen, and more recent decisions had suggested that Congress could not create a statutory right to sue a state unless the law provided this expressly. The Jones Act had no such express provision.

The Court ruled against Welch 5-4, with Powell writing. After backing Texas for the reasons just stated, he turned to the dissent’s arguments that the Eleventh Amendment was misinterpreted, and that Hans was wrongly decided. Powell said that, at worst, the historical evidence of sovereign immunity’s original scope was ambiguous, and stare decisis foreclosed the possibility of overruling Hans on the basis of some inconclusive historical arguments. In response to the dissent’s claim that suing in admiralty was outside of the Amendment’s purview, Powell again showed that the history did not unequivocally support such a reading. The majority stressed that Welch could still sue state officials, and that sovereign immunity served crucial federalism concerns.

White’s concurrence emphasized that the Jones Act did indeed give Welch some alternate relief. Scalia concurred in judgment. He creatively argued that even if the dissent was right about Hans, Congress had passed the Jones Act on the assumption that Hans was correct, and thus, the law couldn’t possibly abrogate sovereign immunity. Brennan’s dissent, joined by Marshall, Blackmun, and Stevens, first said that admiralty was never part of state sovereign immunity. Lots of early case law backed him up, or so he claimed. Next, Brennan said that the Eleventh Amendment, by its literal text, only protected states against suits from non-citizens of that state. Again, history was his great sword of argumentation. Out of his grab bag, Brennan also pulled the claims that the Eleventh Amendment only applied to cases in diversity, and that the majority improperly discounted a recent Warren Court precedent.

This is one of those fun cases where everyone on the Court – left, right, and center – suddenly becomes a dyed-in-the-wool originalist. I don’t really know who’s history is better, and given the ambiguity I have to side with Powell due to the stare decisis concerns. I particularly liked Scalia’s elegant argument. All this in spite of the fact that I personally disagree with the concept of sovereign immunity. The Eleventh Amendment is one the USA could do without. No one, not even a state, should be above the law, and above accountability.

Solorio v. United States

483 U. S. 435

June 25, 1987

Richard Solorio was a member of the Coast Guard. He was also a pedophile who sexually abused little girls, first off-base in Alaska, and later on-base in New York. The Coast Guard sought to try Solorio in military court for all the offenses, but this ran into a snag, because under the 1969 O’Callahan Supreme Court ruling, only “service connected” crimes could be subject to court-martial. The Alaska incidents, taking place off-base, arguably were not.

The Court ruled 6-3 that Solorio could be tried in military court for all offenses. Rehnquist, writing for the majority, overruled O’Callahan, finding it contrary to what had previously been long settled historical understanding. Rehnquist showed that under Article I of the Constitution, the military had full power to try all offenses committed by members of the armed forces. While the ‘military connected’ standard had some precedent in 17th and 18th century English law, the Founders had not incorporated it into the American law tradition. Furthermore, determining what crimes were really military connected had proven especially troublesome.

Stevens concurred in judgment – the lower court had found the Alaska crimes to be ‘military connected,’ so he saw no need to reconsider O’Callahan. Marshall’s dissent, joined by Brennan and Blackmun, heavily disputed Rehnquist’s history, finding strong evidence of a ‘military connected’ standard well into the 19th century. What’s more, court-martial lacked Fifth and Sixth Amendment protections, and due to the importance of those safeguards, he thought court-martial should only be resorted to in the most highly limited of circumstances. Off-base, off-duty sexual assault did not qualify, especially since there was no evidence that it disrupted military life in the ranks.

Given the present climate of extreme sensitivity about rape culture, I have to wonder how some of Brennan and Marshall’s dissents would go over today. In a whole slew of cases, they’re obstinately and obsessively protective of some pretty vile rapists. I will admit that their historical arguments in this decision do have some weight, but the majority’s position is just much better public policy. When you join the military, you place yourself under their authority completely. The notion that soldiers ought to be free to rape on their own time without military disciple is utterly contemptible.

Buchanan v. Kentucky

483 U. S. 402

June 24, 1987

In the course of robbing a gas station, David Buchanan and Kevin Stanford repeatedly raped a 20 year old woman. Stanford then murdered the victim. The pair was tried jointly, and because Kentucky sought the death penalty for Stanford, the jury was ‘death qualified’ – i.e., no one who objected completely to the death penalty was allowed on it. Buchanan complained that having a ‘death qualified’ jury for his non-capital offenses was unfair, since it was more likely to convict. He also objected to the admission of statements by a psychologist who had performed a competency evaluation on him. They had been introduced by the prosecution to rebut statements from a different psychologist, who was testifying on Buchanan’s behalf.

The Court rejected both of Buchanan’s claims 6-3. With regard to the jury, Blackmun stressed the logistical, financial, and equitable problems that would result from having the co-defendants tried separately, with different juries. Furthermore, because a ‘death-qualified’ jury had been previously ruled a fair jury for a capital defendant, there was a Constitutional presumption of fairness for a non-capital defendant as well. With regard to the psychologist statements, Buchanan had opened up the door by having another psychologist testify in his favor – the state therefore had the right to rebut. Importantly, Buchanan had consented to the interview with the psychologist whose statements he objected to. Buchanan’s lawyer knew of this interview. Finally, none of the statements touched the crime at hand, skirting any self-incrimination issues.

Marshall dissented, and was joined by Brennan and Stevens. On the jury issue, Marshall found the ‘death qualification’ both highly prejudicial, and unnecessary. Because joint trials with one capital and one non-capital defendant happened so rarely, the extra cost and difficulty of different juries was ultimately an inadequate reason for consolidation. On the psychologist issue, Marshall argued that the statements were inapposite because they went only to his competency for trial, and not to his mental state at the time of the crime. Because neither Buchanan nor his lawyer could have anticipated the statements being used in the manner they were, they should have been ruled inadmissible (Stevens did not join this section – probably because he thought it was moot in light of the jury issue).

I think I’ve reached the point where the Brennan/Marshall shtick in criminal cases has finally lost all residue of charm and heroism. For a while it was still vaguely admirable in a strange way. But now I only find it tiring, pathetic, obtuse, and morally disgusting. Isaiah 5:20 summed it up: “Woe to those who call evil good, and good evil; Who substitute darkness for light and light for darkness; Who substitute bitter for sweet and sweet for bitter!